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Table of Contents    

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549 
FORM 10-Q 
(Mark One) 
☒ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the quarterly period ended September 30, 2021
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the transition period from            to            
Commission File Number: 1-11884
ROYAL CARIBBEAN CRUISES LTD.
(Exact name of registrant as specified in its charter) 
Republic of Liberia
  98-0081645
(State or other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)
 
1050 Caribbean Way, Miami, Florida 33132
(Address of principal executive offices) (zip code) 
(305) 539-6000
(Registrant’s telephone number, including area code) 
N/A
(Former name, former address and former fiscal year, if changed since last report) 

Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading Symbol(s) Name of each exchange on which registered
Common Stock, par value $0.01 per share RCL New York Stock Exchange

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes ☒  No ☐ 
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).  Yes ☒  No ☐ 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. 
Large accelerated filer ☒
 
Accelerated filer ☐
 
Non-accelerated filer ☐
 
Smaller reporting company ☐
Emerging growth company ☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes ☐  No ☒ 
There were 254,789,847 shares of common stock outstanding as of October 27, 2021

























Table of Contents    

ROYAL CARIBBEAN CRUISES LTD.
TABLE OF CONTENTS
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
ROYAL CARIBBEAN CRUISES LTD.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(unaudited; in thousands, except per share data)
Quarter Ended September 30,
  2021 2020
Passenger ticket revenues $ 280,153  $ 3,204 
Onboard and other revenues 176,805  (36,892)
Total revenues 456,958  (33,688)
Cruise operating expenses:    
Commissions, transportation and other 64,780  (3,321)
Onboard and other 42,703  6,036 
Payroll and related 265,974  119,213 
Food 48,950  5,640 
Fuel 118,127  53,815 
Other operating 273,157  127,226 
Total cruise operating expenses 813,691  308,609 
Marketing, selling and administrative expenses 323,422  246,779 
Depreciation and amortization expenses 325,907  317,139 
Impairment and credit losses (238) 89,899 
Operating Loss (1,005,824) (996,114)
Other income (expense):    
Interest income 3,786  5,017 
Interest expense, net of interest capitalized (430,661) (259,349)
Equity investment loss (29,085) (78,013)
Other income (expense) 37,230  (10,853)
  (418,730) (343,198)
Net Loss (1,424,554) (1,339,312)
Less: Net Income attributable to noncontrolling interest —  7,444 
Net Loss attributable to Royal Caribbean Cruises Ltd. $ (1,424,554) $ (1,346,756)
Loss per Share:    
Basic $ (5.59) $ (6.29)
Diluted $ (5.59) $ (6.29)
Weighted-Average Shares Outstanding:    
Basic 254,713  214,163 
Diluted 254,713  214,163 
Comprehensive Loss    
Net Loss $ (1,424,554) $ (1,339,312)
Other comprehensive income (loss):    
Foreign currency translation adjustments 5,022  19,071 
Change in defined benefit plans (3,627) (3,086)
(Loss) gain on cash flow derivative hedges (13,264) 66,135 
Total other comprehensive (loss) income (11,869) 82,120 
Comprehensive Loss (1,436,423) (1,257,192)
Less: Comprehensive Income attributable to noncontrolling interest —  7,444 
Comprehensive Loss attributable to Royal Caribbean Cruises Ltd. $ (1,436,423) $ (1,264,636)



The accompanying notes are an integral part of these consolidated financial statements
1

ROYAL CARIBBEAN CRUISES LTD.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(unaudited; in thousands, except per share data)

Nine Months Ended September 30,
2021 2020
Passenger ticket revenues $ 323,782  $ 1,487,077 
Onboard and other revenues 226,104  687,590 
Total revenues 549,886  2,174,667 
Cruise operating expenses:
Commissions, transportation and other 72,917  342,632 
Onboard and other 55,782  151,333 
Payroll and related 530,250  693,480 
Food 74,618  154,439 
Fuel 219,058  327,275 
Other operating 569,383  830,689 
Total cruise operating expenses 1,522,008  2,499,848 
Marketing, selling and administrative expenses 867,021  944,087 
Depreciation and amortization expenses 959,512  961,226 
Impairment and credit losses 39,934  1,354,514 
Operating Loss (2,838,589) (3,585,008)
Other income (expense):
Interest income 13,317  15,757 
Interest expense, net of interest capitalized (1,007,986) (571,149)
Equity investment loss (137,044) (140,258)
Other income (expense) 66,771  (127,537)
(1,064,942) (823,187)
Net Loss (3,903,531) (4,408,195)
Less: Net Income attributable to noncontrolling interest —  22,332 
Net Loss attributable to Royal Caribbean Cruises Ltd. $ (3,903,531) $ (4,430,527)
Loss per Share:
Basic $ (15.56) $ (21.01)
Diluted $ (15.56) $ (21.01)
Weighted-Average Shares Outstanding:
Basic 250,808  210,894 
Diluted 250,808  210,894 
Comprehensive Loss
Net Loss $ (3,903,531) $ (4,408,195)
Other comprehensive income (loss):
Foreign currency translation adjustments 11,255  55,698 
Change in defined benefit plans 3,748  (16,953)
Gain (loss) on cash flow derivative hedges 48,514  (110,139)
Total other comprehensive income (loss) 63,517  (71,394)
Comprehensive Loss (3,840,014) (4,479,589)
Less: Comprehensive Income attributable to noncontrolling interest —  22,332 
Comprehensive Loss attributable to Royal Caribbean Cruises Ltd. $ (3,840,014) $ (4,501,921)
The accompanying notes are an integral part of these consolidated financial statements
2

ROYAL CARIBBEAN CRUISES LTD.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
  As of
  September 30, December 31,
  2021 2020
  (unaudited)  
Assets    
Current assets    
Cash and cash equivalents $ 3,289,326  $ 3,684,474 
Trade and other receivables, net of allowances of $12,369 and $3,867 at September 30, 2021 and December 31, 2020, respectively
397,232  284,149 
Inventories 142,408  118,703 
Prepaid expenses and other assets 268,008  154,339 
Derivative financial instruments 70,407  70,082 
Total current assets 4,167,381  4,311,747 
Property and equipment, net 25,699,712  25,246,595 
Operating lease right-of-use assets 560,224  599,985 
Goodwill 809,373  809,480 
Other assets, net of allowances of $85,089 and $81,580 at September 30, 2021 and December 31, 2020, respectively
1,428,876  1,497,380 
Total assets $ 32,665,566  $ 32,465,187 
Liabilities and Shareholders’ Equity    
Current liabilities    
Current portion of long-term debt $ 956,743  $ 961,768 
Commercial paper —  409,319 
Current portion of operating lease liabilities 71,341  102,677 
Accounts payable 461,411  353,422 
Accrued interest 248,983  252,668 
Accrued expenses and other liabilities 658,987  615,750 
Derivative financial instruments 79,305  56,685 
Customer deposits 2,766,150  1,784,832 
Total current liabilities 5,242,920  4,537,121 
Long-term debt 19,882,760  17,957,956 
Long-term operating lease liabilities 549,099  563,876 
Other long-term liabilities 523,289  645,565 
Total liabilities 26,198,068  23,704,518 
Shareholders’ equity    
Preferred stock ($0.01 par value; 20,000,000 shares authorized; none outstanding)
—  — 
Common stock ($0.01 par value; 500,000,000 shares authorized, 282,672,234 and 265,198,371 shares issued, September 30, 2021 and December 31, 2020, respectively)
2,827  2,652 
Paid-in capital 7,547,210  5,998,574 
Retained earnings 1,659,244  5,562,775 
Accumulated other comprehensive loss (675,824) (739,341)
Treasury stock (27,882,987 and 27,799,775 common shares at cost, September 30, 2021 and December 31, 2020, respectively)
(2,065,959) (2,063,991)
Total shareholders’ equity 6,467,498  8,760,669 
Total liabilities and shareholders’ equity $ 32,665,566  $ 32,465,187 

The accompanying notes are an integral part of these consolidated financial statements
3

ROYAL CARIBBEAN CRUISES LTD.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited, in thousands)
Nine Months Ended September 30,
  2021 2020
Operating Activities    
Net Loss $ (3,903,531) $ (4,408,195)
Adjustments:    
Depreciation and amortization 959,512  961,226 
Impairment and credit losses 39,934  1,354,514 
Net deferred income tax benefit (31,395) (4,586)
(Gain) loss on derivative instruments not designated as hedges (11,560) 64,541 
Share-based compensation expense 55,435  29,871 
Equity investment loss 137,044  140,258 
Amortization of debt issuance costs 94,511  54,887 
Amortization of debt discounts and premiums 93,517  36,330 
Loss on extinguishment of debt 138,759  41,109 
Currency translation adjustment losses —  69,044 
Change in fair value of contingent consideration —  (45,126)
Changes in operating assets and liabilities:    
(Increase) decrease in trade and other receivables, net (225,535) 133,769 
(Increase) decrease in inventories (26,711) 19,675 
(Increase) decrease in prepaid expenses and other assets (123,935) 271,315 
Increase (decrease) in accounts payable 107,215  (90,306)
(Decrease) increase in accrued interest (3,685) 164,284 
Decrease in accrued expenses and other liabilities (5,911) (87,936)
Increase (decrease) in customer deposits 1,031,930  (1,608,355)
Dividends received from unconsolidated affiliates —  2,215 
Other, net 1,637  (4,789)
Net cash used in operating activities (1,672,769) (2,906,255)
Investing Activities    
Purchases of property and equipment (1,654,271) (1,573,241)
Cash received on settlement of derivative financial instruments 27,497  3,771 
Cash paid on settlement of derivative financial instruments (54,916) (139,940)
Investments in and loans to unconsolidated affiliates (70,084) (87,943)
Cash received on loans to unconsolidated affiliates 25,647  15,581 
Proceeds from the sale of property and equipment and other assets 175,439  — 
Other, net (9,546) (6,921)
Net cash used in investing activities (1,560,234) (1,788,693)
Financing Activities    
Debt proceeds 4,144,077  12,672,189 
Debt issuance costs (159,147) (348,118)
Repayments of debt (2,212,510) (3,430,245)
Premium on repayment of debt (135,372) — 
Proceeds from issuance of commercial paper notes —  6,765,816 
Repayments of commercial paper notes (414,570) (7,837,635)
Dividends paid —  (326,421)
Proceeds from common stock issuances 1,621,860  — 
The accompanying notes are an integral part of these consolidated financial statements
4

ROYAL CARIBBEAN CRUISES LTD.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited, in thousands)
Nine Months Ended September 30,
  2021 2020
Other, net (5,779) (25,824)
Net cash provided by financing activities 2,838,559  7,469,762 
Effect of exchange rate changes on cash (704) (1,764)
Net (decrease) increase in cash and cash equivalents (395,148) 2,773,050 
Cash and cash equivalents at beginning of period 3,684,474  243,738 
Cash and cash equivalents at end of period $ 3,289,326  $ 3,016,788 
Supplemental Disclosure    
Cash paid during the period for:    
Interest, net of amount capitalized $ 630,740  $ 258,063 
Non-cash Investing Activities    
Notes receivable issued upon sale of property and equipment and other assets $ 16,000  $ 53,419 
Purchase of property and equipment included in accounts payable and accrued expenses and other liabilities $ 22,925  $ 13,603 
Non-cash Financing Activities
Purchase of Silversea Cruises non-controlling interest $ —  $ 592,313 
Termination of Silversea Cruises contingent consideration obligation $ —  $ 17,274 

The accompanying notes are an integral part of these consolidated financial statements
5

ROYAL CARIBBEAN CRUISES LTD.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(unaudited; in thousands)
Common Stock Paid-in Capital Retained Earnings Accumulated Other Comprehensive Loss Treasury Stock Total Shareholders' Equity
Balance at July 1, 2021 $ 2,826  $ 7,527,305  $ 3,083,798  $ (663,955) $ (2,065,959) $ 7,884,015 
Activity related to employee stock plans 1  20,045  —  —  —  20,046 
Common stock issuance —  (140) —  —  —  (140)
Changes related to cash flow derivative hedges —  —  —  (13,264) —  (13,264)
Change in defined benefit plans —  —  —  (3,627) —  (3,627)
Foreign currency translation adjustments —  —  —  5,022  —  5,022 
Net Loss attributable to Royal Caribbean Cruises Ltd. —  —  (1,424,554) —  —  (1,424,554)
Balance at September 30, 2021 $ 2,827  $ 7,547,210  $ 1,659,244  $ (675,824) $ (2,065,959) $ 6,467,498 

Common Stock Paid-in Capital Retained Earnings Accumulated Other Comprehensive Loss Treasury Stock Total Shareholders' Equity
Balance at January 1, 2021 $ 2,652  $ 5,998,574  $ 5,562,775  $ (739,341) $ (2,063,991) $ 8,760,669 
Activity related to employee stock plans 5  52,799  —  —  —  52,804 
Common stock issuance 170  1,495,837  —  —  —  1,496,007 
Changes related to cash flow derivative hedges —  —  —  48,514  —  48,514 
Change in defined benefit plans —  —  —  3,748  —  3,748 
Foreign currency translation adjustments —  —  —  11,255  —  11,255 
Purchase of treasury stock —  —  —  —  (1,968) (1,968)
Net Loss attributable to Royal Caribbean Cruises Ltd. —  —  (3,903,531) —  —  (3,903,531)
Balance at September 30, 2021 $ 2,827  $ 7,547,210  $ 1,659,244  $ (675,824) $ (2,065,959) $ 6,467,498 














The accompanying notes are an integral part of these consolidated financial statements
6

ROYAL CARIBBEAN CRUISES LTD.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(unaudited; in thousands)

Common Stock Paid-in Capital Retained Earnings Accumulated Other Comprehensive Loss Treasury Stock Total Shareholders' Equity
Balance at July 1, 2020 $ 2,372  $ 3,700,288  $ 8,276,463  $ (951,227) $ (2,063,991) $ 8,963,905 
Activity related to employee stock plans 1  20,445  —  —  —  20,446 
Silversea acquisition 52  608,824  608,876 
Changes related to cash flow derivative hedges —  —  —  66,135  —  66,135 
Change in defined benefit plans —  —  —  (3,086) —  (3,086)
Foreign currency translation adjustments —  —  3  19,071  —  19,074 
Net loss attributable to Royal Caribbean Cruises Ltd. —  —  (1,346,756) —  —  (1,346,756)
Balance at September 30, 2020 $ 2,425  $ 4,329,557  $ 6,929,710  $ (869,107) $ (2,063,991) $ 8,328,594 


Common Stock Paid-in Capital Retained Earnings Accumulated Other Comprehensive Loss Treasury Stock Total Shareholders' Equity
Balance at January 1, 2020 $ 2,365  $ 3,493,959  $ 11,523,326  $ (797,713) $ (2,058,091) $ 12,163,846 
Activity related to employee stock plans 8  11,886  —  —  —  11,894 
Equity component of convertible notes, net of issuance costs —  208,988  —  —  —  208,988 
Silversea acquisition 52  608,824  —  —  —  608,876 
Common stock dividends, $0.78 per share
—  —  (163,089) —  —  (163,089)
Changes related to cash flow derivative hedges —  —  —  (110,139) —  (110,139)
Change in defined benefit plans —  —  —  (16,953) —  (16,953)
Foreign currency translation adjustments —  —  —  55,698  —  55,698 
Purchases of treasury stock —  5,900  —  —  (5,900) — 
Net loss attributable to Royal Caribbean Cruises Ltd. —  —  (4,430,527) —  —  (4,430,527)
Balance at September 30, 2020 $ 2,425  $ 4,329,557  $ 6,929,710  $ (869,107) $ (2,063,991) $ 8,328,594 
The accompanying notes are an integral part of these consolidated financial statements
7

ROYAL CARIBBEAN CRUISES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
As used in this Quarterly Report on Form 10-Q, the terms “Royal Caribbean,” "Royal Caribbean Group," the “Company,” “we,” “our” and “us” refer to Royal Caribbean Cruises Ltd. and, depending on the context, Royal Caribbean Cruises Ltd.’s consolidated subsidiaries and/or affiliates. The terms “Royal Caribbean International,” “Celebrity Cruises,” and "Silversea Cruises" refer to our wholly owned global cruise brands. Throughout this Quarterly Report on Form 10-Q, we also refer to our partner brands in which we hold an ownership interest, including “TUI Cruises” and "Hapag-Lloyd Cruises." However, because these partner brands are unconsolidated investments, our operating results and other disclosures herein do not include these brands unless otherwise specified. In accordance with cruise vacation industry practice, the term “berths” is determined based on double occupancy per cabin even though many cabins can accommodate three or more passengers. This Quarterly Report on Form 10-Q should be read in conjunction with our Annual Report on Form 10-K for the year ended December 31, 2020.
This Quarterly Report on Form 10-Q also includes trademarks, trade names and service marks of other companies. Use or display by us of other parties’ trademarks, trade names or service marks is not intended to and does not imply a relationship with, or endorsement or sponsorship of us by, these other parties other than as described herein.
Note 1. General
Description of Business
We are a global cruise company. We own and operate three global cruise brands: Royal Caribbean International, Celebrity Cruises and Silversea Cruises (collectively, our "Global Brands"). We also own 50% of TUI Cruises GmbH ("TUIC"), which operates the German brands TUI Cruises and Hapag-Lloyd Cruises (collectively, our "Partner Brands"). We account for our investment in TUIC under the equity method of accounting. Together, our Global Brands and our Partner Brands operate a combined 60 ships as of September 30, 2021. Our ships offer a selection of worldwide itineraries that call on more than 1,000 destinations on all seven continents.
Management's Plan and Liquidity
We voluntarily suspended our global cruise operations effective March 2020 in response to the COVID-19 outbreak. We have restarted our global cruise operations in a phased manner, following the requirements and recommendations of regulatory agencies, with reduced guest occupancy, modified itineraries and enhanced health, safety and vaccination protocols.
By the end of September 2021, we operated 38 of our Global and Partner Brand ships, representing 63% of our fleet, and sailed over 500,000 passengers since we resumed operations. We expect to operate approximately 80% of our fleet by December 31, 2021.
Uncertainties remain as to the specifics, timing and costs of administering and implementing our health and safety measures, some of which may be significant. Based on our assessment of these requirements and recommendations, the status of COVID-19 infection and/or vaccination rates in the U.S. or globally or for other reasons, we may determine it necessary to cancel or modify certain of our Global Brands’ cruise sailings. We believe the impact to our global bookings resulting from COVID-19 will continue to have a material negative impact on our results of operations and liquidity, which may be prolonged beyond containment of the disease and its variants.
Significant events affecting travel, including COVID-19 and our gradual resumption of cruise operations, typically have an impact on the booking pattern for cruise vacations, with the full extent of the impact generally determined by the length of time the event influences travel decisions. The estimation of our future liquidity requirements include numerous assumptions that are subject to various risks and uncertainties. The principal assumptions used to estimate our future liquidity requirements consist of:
•Expected gradual resumption of cruise operations;
•Expected lower than comparable historical occupancy levels during the resumption of cruise operations; and
•Expected incremental spend for our resumption of cruise operations, including bringing our vessels out of layup status, returning our crew members to our ships and implementing and maintaining of health and safety protocols.
There can be no assurance that our assumptions and estimates are accurate due to possible variables, including, but not limited to, the uncertainties associated with regulatory requirements and recommendations, subsequent changes to and/or enforceability of those requirements and recommendations, our ability to meet the requirements and recommendations, and
8

whether efforts by countries to contain the disease and its variants will further restrict our ability to resume operations. We have implemented a number of proactive measures to mitigate the financial and operational impacts of COVID-19, including reduction of capital expenditures and operating expenses, the issuance of debt and shares of our common stock, the amendment of credit agreements to defer payments, the waiver and/or modification of covenant requirements and the suspension of dividend payments. Additionally, we expect to continue to pursue refinancing opportunities to reduce interest expense and extend maturities.
As of September 30, 2021, we had liquidity of $4.1 billion, including $0.1 billion of undrawn revolving credit facility capacity, $3.3 billion in cash and cash equivalents, and a $0.7 billion commitment for a 364-day term loan facility available to draw at any time prior to August 12, 2022. Our revolving credit facilities were mostly utilized through a combination of amounts drawn and letters of credit issued under the facilities as of September 30, 2021.
During the three months ended March 31, 2021, we extended our $1.0 billion unsecured loan due April 2022 and our $1.6 billion unsecured revolving credit facility due October 2022 to October 2023 and April 2024, respectively. As of September 30, 2021, we were in compliance with our financial covenants. Refer to Note 7. Debt for further information regarding the amendments made to our debt facilities and credit card processing agreements, including related covenants, and for further discussion of our 2021 financing activities.
Based on our assumptions regarding the impact of COVID-19 and our resumption of operations, as well as our present financial condition, we believe that we have sufficient financial resources to fund our obligations for at least the next twelve months from the issuance of these financial statements.
Basis for Preparation of Consolidated Financial Statements
The unaudited consolidated financial statements are presented pursuant to the rules and regulations of the Securities and Exchange Commission. In our opinion, these statements include all adjustments necessary for a fair statement of the results of the interim periods reported herein. Adjustments consist only of normal recurring items, except for any items discussed in the notes below. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) have been condensed or omitted as permitted by such Securities and Exchange Commission rules and regulations. Estimates are required for the preparation of financial statements in accordance with these principles. Actual results could differ from these estimates. Refer to Note 2. Summary of Significant Accounting Policies in this Quarterly Report on Form 10-Q and in our Annual Report on Form 10-K for the year ended December 31, 2020 for a discussion of our significant accounting policies.
All significant intercompany accounts and transactions are eliminated in consolidation. We consolidate entities over which we have control, usually evidenced by a direct ownership interest of greater than 50%, and variable interest entities where we are determined to be the primary beneficiary. Refer to Note 6. Other Assets for further information regarding our variable interest entities. We consolidate the operating results of Silversea Cruises on a three-month reporting lag to allow for more timely preparation of our consolidated financial statements. No material events or other transactions involving Silversea Cruises have occurred from June 30, 2021 through September 30, 2021, that would require further disclosure or adjustment to our consolidated financial statements as of and for the quarter ended September 30, 2021.
For affiliates we do not control but over which we have significant influence on financial and operating policies, usually evidenced by a direct ownership interest from 20% to 50%, the investment is accounted for using the equity method.
Effective March 19, 2021, we sold our wholly-owned brand, Azamara Cruises ("Azamara"), including its three-ship fleet and associated intellectual property, to Sycamore Partners for $201 million, before closing adjustments. The sale of Azamara does not represent a strategic shift that will have a major effect on our operations and financial results, as we continue to provide similar itineraries to and source passengers from the markets served by the Azamara business. Therefore, the sale of Azamara did not meet the criteria for discontinued operations reporting. Effective March 19, 2021, we no longer consolidate Azamara's balance sheet nor recognize its results of operations in our consolidated financial statements. We recognized an immaterial gain on the sale during the quarter ended March 31, 2021 and have agreed to provide certain transition services to Azamara for a period of time for a fee.
On July 9, 2020, we acquired the 33.3% interest in Silversea Cruises that we did not already own from Heritage Cruise Holding Ltd. See Note 11. Redeemable Noncontrolling Interest in our Annual Report on Form 10-K for the year ended December 31, 2020 for further information regarding our acquisition of Silversea Cruises' noncontrolling interest.

9

Note 2. Summary of Significant Accounting Policies
Recent Accounting Pronouncements
In March 2020, the Financial Accounting Standards Board (“FASB") issued Accounting Standard Update (“ASU") No. 2020-04, Reference Rate Reform (Topic 848), which provides optional expedients and exceptions to the current guidance on contract modifications and hedging relationships to ease the financial reporting burdens of the expected market transition from LIBOR and other interbank offered rates to alternative reference rates. Subsequently, in January 2021, the FASB issued ASU No. 2021-01, Reference Rate Reform (Topic 848), which presents amendments to clarify that certain optional expedients and exceptions in Topic 848 for contract modifications and hedge accounting apply to derivatives that are affected by the discounting transition. The guidance in both ASUs was effective upon issuance and may be applied retrospectively or prospectively to contract modifications made and hedging relationships entered into or evaluated on or before December 31, 2022. We are currently evaluating the impact of the new guidance on our consolidated financial statements. The impact, if any, will be dependent on the terms of any future contract modifications related to a change in reference rate.
In August 2020, the FASB issued ASU No. 2020-06, Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging - Contracts in Entity’s Own Equity (Subtopic 815-40), which simplifies the accounting for convertible instruments. The guidance removes certain accounting models which separate the embedded conversion features from the host contract for convertible instruments, requiring bifurcation only if the convertible debt feature qualifies as a derivative under ASC 815 or for convertible debt issued at a substantial premium. The ASU removes certain settlement conditions required for equity contracts to qualify for the derivative scope exception, permitting more contracts to qualify for it. In addition, the guidance eliminates the treasury stock method to calculate diluted earnings per share for convertible instruments and requires the use of the if-converted method. The ASU is effective for annual reporting periods beginning after December 15, 2021, including interim reporting periods within those annual periods, with early adoption permitted no earlier than the fiscal year beginning after December 15, 2020. The guidance is expected to have an impact on our consolidated financial statements given the recent issuance of convertible notes; however, we are still evaluating the magnitude of the new guidance on our consolidated financial statements.
Reclassifications
For the nine months ended September 30, 2021, we separately presented Amortization of debt discounts and premiums, which includes amortization of commercial paper notes discount, in our consolidated statements of cash flows within Operating Activities. As a result, the prior year amortization amounts were reclassified from Other, net within Operating Activities to conform to the current year presentation. Also, for the nine months ended September 30, 2021, we no longer separately present Proceeds from exercise of common stock options in our consolidated statements of cash flows. As a result, the prior year amounts were reclassified to Other, net within Financing Activities to conform to the current year presentation.

Note 3. Impairments and Credit Losses
The challenges related to COVID-19 have significantly impacted our expected investments, operating plans and projected cash flows. Refer to Note 1. General for further information regarding COVID-19 and its impact to the Company. As a result of these events, we performed interim impairment evaluations during 2020 on certain assets.
During the quarter and nine months ended September 30, 2020, we recognized combined impairment and credit losses of $89.9 million and $1.4 billion, respectively, which are reported within Impairment and credit losses within our consolidated statements of comprehensive loss. For the quarter ended September 30, 2020, we recognized impairment losses of $83.9 million primarily related to our property and equipment, net. We recognized impairment losses of $1.2 billion during the nine months ended September 30, 2020 primarily related to goodwill, trademarks and trade names, property and equipment, net and right-of-use assets. The credit losses of $6.0 million and $135.7 million recognized during the quarter and nine months ended September 30, 2020, respectively, related to our notes receivable.
In addition, an impairment charge of $39.7 million related to our equity investments was recognized in earnings during the quarter ended March 31, 2020 and is reported within Equity investment loss within our consolidated statements of comprehensive loss for the nine months ended September 30, 2020.
For the quarters ended March 31, 2021 and September 30, 2021, we had no indication of impairment. During the quarter ended June 30, 2021, we determined that certain construction in progress projects would be reduced in scope or would no longer be completed due to the impact COVID-19 has had on our operations. This led to an impairment of $40.6 million of construction in progress assets previously reported in Property and equipment, net. This impairment charge is reported within
10

Impairment and Credit Losses in our consolidated statements of comprehensive loss for nine months ended September 30, 2021. For information regarding our credit losses, refer to Note 6. Other Assets.
The adverse impact COVID-19 will continue to have on our business, operating results, cash flows and overall financial condition is uncertain and may result in changes to the assumptions used in the impairment tests, which may result in additional impairments to these assets in the future.

Note 4. Revenues
Revenue Recognition
Revenues are measured based on consideration specified in our contracts with customers and are recognized as the related performance obligations are satisfied.
Historically, the majority of our revenues when we are operating are derived from passenger cruise contracts that are reported within Passenger ticket revenues in our consolidated statements of comprehensive loss. Our performance obligation under these contracts is to provide a cruise vacation in exchange for the ticket price. We satisfy this performance obligation and recognize revenue over the duration of each cruise, which generally range from two to 24 nights.
Passenger ticket revenues include charges to our guests for port costs that vary with passenger head counts. These type of port costs, along with port costs that do not vary by passenger head counts, are included in our cruise operating expenses. The amounts of port costs charged to our guests and included within Passenger ticket revenues on a gross basis were $29.3 million for the quarter September 30, 2021 compared to no port costs charged for the quarter ended September 30, 2020. Port costs charged to our guest and included within Passenger ticket revenues were $33.9 million and $124.5 million for the nine months ended September 30, 2021 and 2020, respectively.
Our total revenues also include Onboard and other revenues, which historically have consisted primarily of revenues from the sale of goods and services onboard our ships that are not included in passenger ticket prices. We receive payment before or concurrently with the transfer of these goods and services to passengers during a cruise and recognize revenue at the time of transfer over the duration of the related cruise.
As a practical expedient, we have omitted disclosures on our remaining performance obligations as the duration of our contracts with customers is less than a year.
Disaggregated Revenues
The following table disaggregates our total revenues by geographic regions where we provide cruise itineraries (in thousands):
Quarter Ended September 30, Nine Months Ended September 30,
2021 2020(6) 2021 2020(6)
Revenues by itinerary
North America(1) $ 279,339  $ (11,781) $ 290,971  $ 1,338,365 
Asia/Pacific(2) 22,651  (3,441) 71,854  397,496 
Europe(3) 111,054  —  114,819  18,129 
Other regions(4) 8,561  6,576  11,270  239,112 
Total revenues by itinerary 421,605  (8,646) 488,914  1,993,102 
Other revenues(5) 35,353  (25,042) 60,972  181,565 
Total revenues $ 456,958  $ (33,688) $ 549,886  $ 2,174,667 
(1)Includes the United States, Canada, Mexico and the Caribbean.
(2)Includes Southeast Asia (e.g., Singapore, Thailand and the Philippines), East Asia (e.g., China and Japan), South Asia (e.g., India and Pakistan) and Oceania (e.g., Australia and Fiji Islands) regions.
(3)Includes European countries (e.g., Nordics, Germany, France, Italy, Spain and the United Kingdom).
(4)Includes seasonality impacted itineraries primarily in South and Latin American countries.
(5)Includes revenues primarily related to cancellation fees, vacation protection insurance, pre- and post-cruise tours and fees for operating certain port facilities. Amounts also include revenues related to our bareboat charter, which was terminated when Pullmantur
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Holdings filed for reorganization in Spain in 2020, and procurement and management related services we perform on behalf of our unconsolidated affiliates and third parties. Refer to Note 6. Other Assets for more information on our unconsolidated affiliates.
(6)Onboard and other revenues for the quarter and nine months ended September 30, 2020 includes a charge of $67.9 million to correct cancellation revenue, for certain immaterial bookings, which was incorrectly recognized during the six months ended June 30, 2020. The charge is considered immaterial to our financial statements.
Passenger ticket revenues are attributed to geographic areas based on where the reservation originates. For the quarters and nine months ended September 30, 2021 and 2020, our guests were sourced from the following areas:
Quarter Ended September 30,
2021 2020
Passenger ticket revenues:
United States 74  % 66  %
United Kingdom 14  % 14  %
All other countries (1) 12  % 20  %

Nine Months Ended September 30,
2021 2020
Passenger ticket revenues:
United States 67  % 67  %
United Kingdom 13  % 7  %
Singapore 13  % —  %
All other countries (1) 7  % 26  %
(1)No other individual country's revenue exceeded 10% for the quarters and nine months ended September 30, 2021 and 2020.
Customer Deposits and Contract Liabilities
Our payment terms generally require an upfront deposit to confirm a reservation, with the balance due prior to the cruise. Deposits received on sales of passenger cruises are initially recorded as Customer deposits in our consolidated balance sheets and subsequently recognized as passenger ticket revenues during the duration of the cruise. ASC 606, Revenues from Contracts with Customers, defines a “contract liability” as an entity’s obligation to transfer goods or services to a customer for which the entity has received consideration from the customer. We do not consider customer deposits to be a contract liability until the customer no longer retains the unilateral right, resulting from the passage of time, to cancel such customer's reservation and receive a full refund.
The current reduction in demand for cruising due to COVID-19 resulted in an unprecedented low level of advance bookings and the associated customer deposits received. At the same time, we have experienced significant cancellations as a result of the COVID-19 pandemic, which has led to issuance of refunds to customers, while the remainder have been rebooked on future cruises or received credits in lieu of cash refunds.
As of September 30, 2021, refunds due to customers mostly as a result of booking cancellations were $44.6 million compared to $95.8 million as of December 31, 2020. Due to the uncertainty around the return of demand for cruising, we are unable to estimate the amount of the September 30, 2021 customer deposits that will be recognized in earnings compared to amounts that will be refunded to customers or issued as a credit for future travel through the end of 2021. Customer deposits presented in our consolidated balance sheets include contract liabilities of $538.6 million and $124.8 million as of September 30, 2021 and December 31, 2020, respectively.
We have provided flexibility to guests with bookings on sailings cancelled due to COVID-19 by allowing guests to receive enhanced future cruise credits (“FCC”) or elect to receive refunds in cash. As of September 30, 2021, our customer deposit balance includes approximately $650.0 million of unredeemed FCCs. In January 2021, we extended the expiration date of the FCCs until April 2022 for sailings departing on or before December 2022. Given the uncertainty of travel demand caused by COVID-19 and lack of comparable historical experience of FCC redemptions, we are unable to estimate the number of FCCs that may expire unused in future periods and get recognized as breakage. We will update our breakage analysis as future information is received.
Contract Receivables and Contract Assets
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Although we generally require full payment from our customers prior to their cruise, we grant credit terms to a relatively small portion of our revenue sourced in select markets outside of the United States. As a result, we have outstanding receivables from passenger cruise contracts in those markets. We also have receivables from credit card merchants for cruise ticket purchases and goods and services sold to guests during cruises that are collected before, during or shortly after the cruise voyage. In addition, we have receivables due from concessionaires onboard our vessels. These receivables are included within Trade and other receivables, net in our consolidated balance sheets.
We have contract assets that are conditional rights to consideration for satisfying the construction services performance obligations under a service concession arrangement. As of September 30, 2021 and December 31, 2020, our contract assets were $53.7 million and were included within Other assets in our consolidated balance sheets. Given the short duration of our cruises and our collection terms, we do not have any other significant contract assets.
Assets Recognized from the Costs to Obtain a Contract with a Customer
Prepaid travel agent commissions are an incremental cost of obtaining contracts with customers that we recognize as an asset and include within Prepaid expenses and other assets in our consolidated balance sheets. Prepaid travel agent commissions were $51.4 million as of September 30, 2021 and $1.1 million as of December 31, 2020. Substantially all of our prepaid travel agent commissions at December 31, 2020 were expensed and reported primarily within Commissions, transportation and other in our consolidated statements of comprehensive loss for the nine months ended September 30, 2021.
Note 5. (Loss) Per Share
A reconciliation between basic and diluted (loss) per share is as follows (in thousands, except per share data):
Quarter Ended September 30, Nine Months Ended September 30,
  2021 2020 2021 2020
Net (Loss) attributable to Royal Caribbean Cruises Ltd. for basic and diluted loss per share $ (1,424,554) $ (1,346,756) $ (3,903,531) $ (4,430,527)
Weighted-average common shares outstanding 254,713  214,163  250,808  210,894 
Diluted weighted-average shares outstanding 254,713  214,163  250,808  210,894 
Basic (loss) per share $ (5.59) $ (6.29) $ (15.56) $ (21.01)
Diluted (loss) per share $ (5.59) $ (6.29) $ (15.56) $ (21.01)
 
There were approximately 339,835 and 433,705 antidilutive shares for the quarter and nine months ended September 30, 2021, respectively, compared to 192,981 and 265,606 for the quarter and nine months ended September 30, 2020, respectively.
Since the Company expects to settle in cash the principal outstanding on the convertible notes that mature in 2023, we currently use the treasury stock method when calculating their potential dilutive effect, if any. While the criteria for conversion of the convertible notes has not been met, the shares that would be issued upon conversion of the notes would be antidilutive for the quarter and nine months ended September 30, 2021.

Note 6. Other Assets
A Variable Interest Entity (“VIE”) is an entity in which the equity investors have not provided enough equity to finance the entity’s activities or the equity investors: (1) cannot directly or indirectly make decisions about the entity’s activities through their voting rights or similar rights; (2) do not have the obligation to absorb the expected losses of the entity; (3) do not have the right to receive the expected residual returns of the entity; or (4) have voting rights that are not proportionate to their economic interests and the entity’s activities involve or are conducted on behalf of an investor with a disproportionately small voting interest.
We have determined that TUI Cruises GmbH ("TUIC"), our 50%-owned joint venture, which operates the brands TUI Cruises and Hapag-Lloyd Cruises, is a VIE. In addition, we have determined that we are not the primary beneficiary of TUIC. We believe that the power to direct the activities that most significantly impact TUIC’s economic performance is shared between ourselves and TUI AG, our joint venture partner. All the significant operating and financial decisions of TUIC require the consent of both parties, which we believe creates shared power over TUIC. Accordingly, we do not consolidate this entity and account for this investment under the equity method of accounting.
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As of September 30, 2021, the net book value of our investment in TUIC was $449.2 million, primarily consisting of $316.6 million in equity and a loan of €107.0 million, or approximately $124.0 million based on the exchange rate at September 30, 2021. As of December 31, 2020, the net book value of our investment in TUIC was $538.4 million, primarily consisting of $387.5 million in equity and a loan of €118.9 million, or approximately $145.5 million based on the exchange rate at December 31, 2020. The loan, which was made in connection with the sale of Splendour of the Seas in April 2016, accrues interest at a rate of 6.25% per annum and is payable over 10 years. This loan is 50% guaranteed by TUI AG, our joint venture partner in TUIC, and is secured by a first priority mortgage on the ship. The majority of these amounts were included within Other assets in our consolidated balance sheets. During the quarter ended March 31, 2021, we and TUI AG each contributed €59.5 million, or approximately $69.9 million based on the exchange rate at March 31, 2021, of additional equity through a combination of cash contributions and conversion of existing receivables. In June 2021, Hapag-Lloyd Cruises received delivery of the Hanseatic Spirit, a 230 berth luxury expedition cruise vessel.
TUIC has various ship construction and financing agreements that include certain restrictions on each of our and TUI AG’s ability to reduce our current ownership interest in TUI Cruises below 37.55% through May 2033. Our investment amount and outstanding term loan are substantially our maximum exposure to loss in connection with our investment in TUIC.
TUI Cruises and Hapag-Lloyd Cruises, our Partner Brands, have been adversely affected by COVID-19, resulting in the suspension of the majority of the brands' cruise operations. TUI Cruises and Hapag-Lloyd Cruises have resumed cruises and announced resumption of additional cruise operations in Europe. The brands' suspension of operations during the COVID-19 pandemic has resulted in a material negative impact to the brands' results of operations and liquidity. The brands have executed cost containment actions and liquidity measures, including the issuance of new financing, such as the April 2021 and October 2021 issuances of €300.0 million senior unsecured bonds due in 2026 and €223.5 million senior unsecured bonds due in 2026, respectively, and the deferral of existing financing, to mitigate the impact of COVID-19 until normal operations resume.
We have determined that Pullmantur Holdings, in which we have a 49% noncontrolling interest and Springwater Capital LLC has a 51% interest, is a VIE for which we are not the primary beneficiary, as we do not have the power to direct the activities that most significantly impact the entity's economic performance. In 2020, Pullmantur Holdings and certain of its subsidiaries filed for reorganization under the terms of the Spanish insolvency laws due to the negative impact of COVID-19 on the companies, and on July 15, 2021 Pullmantur Holdings and certain of its subsidiaries filed for liquidation. We suspended the equity method of accounting for Pullmantur Holdings during the second quarter of 2020 as we do not intend to fund the entity's future losses and we lost our ability to exert significant influence over the entity's activities as a result of the liquidation process.
We have determined that Grand Bahama, a ship repair and maintenance facility in which we have a 40% noncontrolling interest, is a VIE. This facility serves cruise and cargo ships, oil and gas tankers and offshore units.  We utilize this facility, among other ship repair facilities, for our regularly scheduled drydocks and certain emergency repairs as may be required. We have determined that we are not the primary beneficiary of this facility as we do not have the power to direct the activities that most significantly impact the facility’s economic performance. Accordingly, we do not consolidate this entity.
During the quarter ended March 31, 2020, we performed an impairment evaluation on our investment in Grand Bahama. As a result of the evaluation, we did not deem our investment balance to be recoverable and recorded an impairment charge of $30.1 million. The impairment assessment and the resulting charge on our equity method investment in Grand Bahama were determined based on management’s estimates and projections. We are currently recognizing our share of net accumulated equity method losses against the carrying value of our loans receivable from Grand Bahama.
As of September 30, 2021, we had exposure to credit loss in Grand Bahama consisting of a $12.3 million loan. Our loan to Grand Bahama matures March 2026 and bears interest at LIBOR plus 3.5% to 3.75%, capped at 5.75%. Interest payable on the loan is due on a semi-annual basis. During the nine months ended September 30, 2021, we received principal and interest payments of $8.9 million related to a term loan that had fully matured. We did not receive principal and interest payments during the quarter and nine months ended September 30, 2020. The outstanding loan balance is included within Trade and other receivables, net and Other assets in our consolidated balance sheets.
We monitor credit risk associated with the loan through our participation on Grand Bahama’s board of directors along with our review of Grand Bahama’s financial statements and projected cash flows. Effective April 1, 2020, we placed the loans in non-accrual status based on our review of Grand Bahama's projected cash flows, which have been adversely affected by impacts to their operations caused by the 2019 crane accident related to Oasis of the Seas, Hurricane Dorian and most recently, COVID-19. During the quarter and nine months ended September 30, 2021, no credit losses were recorded related to these loans.
For further information on the measurements used to estimate the fair value of our equity investments, refer to Note 12. Fair Value Measurements and Derivative Instruments.
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The following tables set forth information regarding our investments accounted for under the equity method of accounting, including the entities discussed above (in thousands):
Quarter Ended September 30, Nine Months Ended September 30,
2021 2020 2021 2020
Share of equity (loss) income from investments $ (29,085) $ (78,013) $ (137,044) $ (140,258)
Dividends received (1) $ —  $ —  $ —  $ 2,215 
(1)There were no dividends received from TUI Cruises for the quarters and nine months ended September 30, 2021 and September 30, 2020.
As of September 30, 2021 As of December 31, 2020
Total notes receivable due from equity investments $ 136,255  $ 164,596 
Less-current portion (1) 19,627  29,501 
Long-term portion (2) $ 116,628  $ 135,095 
(1)Included within Trade and other receivables, net in our consolidated balance sheets.
(2)Included within Other assets in our consolidated balance sheets.
We also provide ship management services to TUIC and provided management services to Pullmantur Holdings (which filed for reorganization in Spain in June 2020). Additionally, we bareboat chartered to Pullmantur Holdings the vessels previously operated by its brands, which were retained by us following the sale of our 51% interest in Pullmantur Holdings. These bareboat charters were terminated when Pullmantur Holdings filed for reorganization in Spain. We recorded the following as it relates to these services in our operating results within our consolidated statements of comprehensive loss (in thousands):
Quarter Ended September 30, Nine Months Ended September 30,
2021 2020 2021 2020
Revenues $ 7,835  $ 5,619  $ 18,979  $ 15,837 
Expenses $ 1,749  $ 1,223  $ 4,738  $ 3,369 

Credit Loss Allowance
We reviewed our notes receivable for credit losses in connection with the preparation of our financial statements as of September 30, 2021. In evaluating the allowance for loan losses, management considered factors such as historical loss experience, the types of loans and the amount of loans in the loan portfolio, adverse situations that may affect the borrower’s ability to repay, the estimated value of any underlying collateral, peer group information and prevailing economic conditions.
The following table summarizes our credit loss allowance related to receivables for the nine months ended September 30, 2021 (in thousands):
Credit Loss Allowance
Beginning balance January 1, 2021 $ 85,447 
Loss provision for receivables 16,734
Write-offs (4,723)
Ending balance September 30, 2021 $ 97,458 

Our credit loss allowance balance as of September 30, 2021, primarily relate to a $81.6 million loss provision recognized during 2020 on notes receivable related to a previous sale of property and equipment.


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Note 7. Debt
Debt consist of the following (in thousands):
Interest Rate (1)
Maturities Through Quarter Ended September 30, 2021 Year Ended December 31, 2020
Fixed rate debt:
Unsecured senior notes
3.70% to 9.13%
2022 - 2028 $ 5,608,385  $ 2,464,994 
Secured senior notes
10.88% to 11.50%
2023 - 2025 2,350,270  3,895,166 
Unsecured term loans
2.53% to 5.41%
2021 - 2033 2,938,196  3,210,161 
Convertible notes
2.88% to 4.25%
2023 1,532,707  1,454,488 
Total fixed rate debt 12,429,558  11,024,809 
Variable rate debt:
Unsecured revolving credit facilities (2)
1.43% to 1.83%
2022 - 2024 2,919,342  3,289,000 
Unsecured UK Commercial paper
—
2021 —  409,319 
USD unsecured term loan
0.59% to 3.33%
2021 - 2033 4,953,628  4,002,249 
Euro unsecured term loan
1.15% to 2.25%
2021 - 2028 698,655  705,064 
Total variable rate debt 8,571,625  8,405,632 
Finance lease liabilities 197,407  213,365 
Total debt (3)
21,198,590  19,643,806 
Less: unamortized debt issuance costs (359,087) (314,763)
Total debt, net of unamortized debt issuance costs 20,839,503  19,329,043 
Less—current portion including commercial paper (956,743) (1,371,087)
Long-term portion $ 19,882,760  $ 17,957,956 
(1) Interest rates based on outstanding loan balance as of September 30, 2021 and, for variable rate debt, include either LIBOR or EURIBOR plus the applicable margin.
(2) Includes $1.9 billion facility and $1.3 billion facility, the vast majority of which is due in 2024. Our $1.9 billion facility accrues interest at LIBOR plus a maximum interest rate margin of 1.30%, which interest was 1.43% as of September 30, 2021 and is subject to a facility fee of a maximum of 0.20%. Our $1.3 billion facility accrues interest at LIBOR plus a maximum interest rate margin of 1.70%, which interest was 1.83% as of September 30, 2021 and is subject to a facility fee of a maximum of 0.30%.
(3) At September 30, 2021 and December 31, 2020, the weighted average interest rate for total debt was 5.65% and 6.02%, respectively.
In March 2021, we amended our $1.55 billion unsecured revolving credit facility due October 2022 and our $1.0 billion unsecured loan due April 2022. These amendments, among other things, extend the maturity date or termination date of certain of the advances and commitments, as applicable, under the facilities held by consenting lenders by 18 months and increase the interest rate margin and/or the facility fee, as applicable, with respect to advances and commitments held by such lenders. Consenting lenders also received a prepayment and commitment reduction equal to 20% of their respective outstanding advances and commitments. Following these amendments, the aggregate revolving capacity of the revolving credit facility is approximately $1.3 billion, with approximately $0.2 billion terminating in October 2022 and approximately $1.1 billion terminating in April 2024 and the aggregate principal balance of the term loan is approximately $0.9 billion, with approximately $0.3 billion maturing in April 2022 and approximately $0.6 billion maturing in October 2023.
As of September 30, 2021, our aggregate revolving borrowing capacity was $3.2 billion and was mostly utilized through a combination of amounts drawn and letters of credit issued under the facilities. Certain of our surety agreements with third party providers for the benefit of certain agencies and associations that provide travel related bonds, allow the sureties to request collateral. We also have agreements with our credit card processors relating to customer deposits received by us for future voyages. These agreements allow the credit card processors to require us, under certain circumstances, to maintain a reserve
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that can be satisfied by posting collateral. As of September 30, 2021, we have posted letters of credit as collateral with our sureties and credit card processors under our revolving credit facilities in the amount of $162.3 million.
Executed amendments are in place for the majority of our credit card processors, waiving reserve requirements tied to breach of our financial covenants through at least September 30, 2022, with modified covenants thereafter, and as such, we do not anticipate any incremental collateral requirements for the processors covered by these waivers in the next 12 months. We have a reserve with a processor where the agreement was amended in the first quarter of 2021, such that proceeds are held in reserve until the sailing takes place or the funds are refunded to the customer. The maximum projected cash exposure with the processor, including amounts currently held and reported in Trade and other receivables, is approximately $237.7 million. The amount and timing are dependent on future factors that are uncertain, such as the pace of resumption of cruise operations, volume of future deposits and whether we transfer our business to other processors. If we require additional waivers on the credit card processing agreements and are not able to obtain them, this could lead to the termination of these agreements or the trigger of reserve requirements.
In March 2021, we took delivery of Odyssey of the Seas. To finance the purchase, we borrowed $994.1 million under a previously committed unsecured term loan which is 95% guaranteed by Euler Hermes Aktiengesellschaft (“Hermes”), the official export credit agency of Germany. The loan amortizes semi-annually over 12 years and bears interest at a floating rate equal to LIBOR plus a margin of 0.96%. Prior to delivery during the first quarter of 2021, we amended the credit agreement to (i) increase the maximum loan amount under the facility to make available to us a maximum amount equal to the US dollar equivalent of 80% of the vessel purchase price plus 100% of the premium payable to Hermes and (ii) defer the payment of all principal payments due between April 2021 and April 2022, which amounts will be repayable semi-annually over a five year period starting in April 2022.
In March 2021, we issued $1.50 billion of senior unsecured notes that mature in 2028, for net proceeds of $1.48 billion. Interest on the senior notes accrues at 5.5% per annum and is payable semi-annually.
In March 2021, we extended our binding commitment for a $700.0 million term loan facility by one year. As amended, we may draw on the facility at any time prior to August 12, 2022. Once drawn, the loan will bear interest at LIBOR plus 3.75% and will mature 364 days from funding. In addition, the facility, once drawn, will be guaranteed by RCI Holdings, LLC, our wholly owned subsidiary that owns the equity interests in subsidiaries that own seven of our vessels. We have the ability to increase the capacity of the facility by an additional $300.0 million from time to time subject to the receipt of additional or increased commitments and the issuance of guarantees from additional subsidiaries.
We repaid in full £300.0 million of Sterling-denominated notes issued under the Joint HM Treasury and Bank of England’s COVID Corporate Financing Facility and a $130 million term loan during the first and second quarters of 2021, respectively.
In June 2021, we issued $650.0 million of senior unsecured notes due in 2026 (the "June Unsecured Notes") for net proceeds of approximately $640.6 million. Interest accrues on the June Unsecured Notes at a fixed rate of 4.25% per annum and is payable semi-annually in arrears. We fully repaid the Silversea Cruises 7.25% senior secured notes due in 2025 (the "Silversea Notes"), in the amount of $619.8 million, with a portion of the proceeds from the June Unsecured Notes. We also funded call premiums, fees and expenses in connection with the redemption of the Silversea Notes with proceeds from the June Unsecured Notes.
In August 2021, we issued $1.0 billion of senior notes due in 2026 (the "August Unsecured Notes") for net proceeds of approximately $986.0 million. Interest accrues on the August Unsecured Notes at a fixed rate of 5.50% per annum and is payable semi-annually in arrears. We used the proceeds of the August Unsecured Notes to replenish our capital as a result of the redemption of a portion of the 11.50% senior secured notes due 2025, in the amount of $928.0 million plus accrued interest and call premiums. The repayment of the 11.50% senior secured notes due 2025 resulted in a total loss on the extinguishment of debt of $141.9 million, which was recognized within Interest expense, net of interest capitalized within our consolidated statements of comprehensive loss for the quarter and nine months ended September 30, 2021.
During the first quarter of 2021, we amended $4.9 billion of our non-export credit facilities and certain of our credit card processing agreements to extend the waiver of the financial covenants through and including the third quarter of 2022 or, if earlier, the date falling after January 1, 2022 on which we elect to comply with the modified covenants. Pursuant to the amendments, we have modified the manner in which such covenants are calculated (temporarily in certain cases and permanently in others) as well as the levels at which our net debt to capitalization covenant will be tested during the period commencing immediately following the end of the waiver period and continuing through the end of 2023. As of September 30, 2021, the monthly-tested minimum liquidity covenant was $350 million for the duration of the waiver period. As of the date of these financial statements, we were in compliance with the applicable minimum liquidity covenant. Pursuant to these
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amendments, the restrictions on paying cash dividends and effectuating share repurchases were extended through and including the third quarter of 2022.
During the first quarter of 2021, we also amended $6.3 billion of our export credit facilities to extend the waiver of the financial covenants through and including at least the end of the third quarter of 2022, and subsequently in the third quarter of 2021, we entered into a letter agreement to extend the waiver period to the end of the fourth quarter of 2022. These amendments defer $1.15 billion of principal payments due between April 2021 and April 2022. The deferred amounts will be repayable semi-annually over a five-year period starting in April 2022. Pursuant to these amendments, we have agreed to implement the same liquidity covenant that applies in our non-export credit facilities. The amendments provide for mandatory prepayment of the deferred amounts upon the taking of certain actions. Subject to a number of carve outs, these include, but are not limited to, the issuance of dividends, the completion of share repurchases, issuances of debt other than for crisis and recovery purposes, the making of loans and the sale of assets other than at arm’s length.
In the fourth quarter of 2020 and the first quarter of 2021, we entered into amendments to our drawn and undrawn ECA facilities to provide for the issuance of guarantees in satisfaction of existing obligations under these facilities. Following issuance (which, in the case of the undrawn facilities, will occur once the debt is drawn), the guarantees will be released under certain circumstances as other debt is repaid or refinanced on an unsecured and unguaranteed basis. In connection with and following the issuance of the guarantees, the guarantor subsidiaries are restricted from issuing additional guarantees in favor of lenders (other than those lenders who are party to the ECA facilities), and certain of the guarantor subsidiaries are restricted from incurring additional debt. In addition, the ECA facilities will benefit from guarantees to be issued by intermediary parent companies of subsidiaries that take delivery of any new vessels subject to export-credit backed financing.
Under certain of our agreements, the contractual interest rate, facility fee and/or export credit agency fee vary with our debt rating. On February 25, 2021, S&P Global downgraded our senior unsecured rating from B+ to B, which had no financial impact, and downgraded our $3.32 billion 10.875% senior secured notes due 2023 and our 11.50% senior secured notes due 2025 (collectively, "the "Secured Notes") and our Silversea Notes which were fully repaid in June 2021 with proceeds from the $650 million June Unsecured Notes, from BB to BB-. This downgrade had no impact on the terms of the notes.
Except for the term loans we incurred to acquire Celebrity Flora and Silver Moon, all of our unsecured ship financing term loans are guaranteed by the export credit agency in the respective country in which the ship is constructed. For the majority of the loans as of September 30, 2021, we pay to the applicable export credit agency, depending on the financing agreement, an upfront fee of 2.35% to 5.48% of the maximum loan amount in consideration for these guarantees. For one of our loans, we pay to the applicable export credit agency a fee of 2.97% per annum, based on the outstanding loan balance. The fee is paid semi-annually over the term of the loan (subject to adjustments based upon our credit ratings). We amortize the fees that are paid upfront over the life of the loan and those that are paid semi-annually over each respective payment period. We classify these fees within Amortization of debt issuance costs in our consolidated statements of cash flows. Prior to the loan being drawn, we present these fees within Other assets in our consolidated balance sheets. Once the loan is drawn, such fees are classified as a discount to the related loan, or contra-liability account, within Current portion of long-term debt or long-term debt.
The following is a schedule of annual maturities on our total debt net of debt issuance costs, and including finance leases, as of September 30, 2021 for each of the next five years (in thousands):
Year
Remainder of 2021 $ 12,932 
2022 2,182,569 
2023 5,372,397 
2024 4,006,923 
2025 2,276,602 
Thereafter 6,988,080 
$ 20,839,503 


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Note 8. Leases
Operating leases
Our operating leases primarily relate to preferred berthing arrangements, real estate and shipboard equipment and are included within Operating lease right-of-use assets, and Long-term operating lease liabilities with the current portion of the liability included within Current portion of operating lease liabilities in our consolidated balance sheets as of September 30, 2021 and December 31, 2020. Leases with an initial term of 12 months or less are not recorded on our consolidated balance sheet. We recognize lease expense for these leases on a straight-line basis over the lease term. Our operating leases include Silver Explorer, operated by Silversea Cruises. The operating lease for Silver Explorer will expire in 2023.
For some of our real estate leases and berthing agreements, we have the option to extend our current lease term. For those lease agreements with renewal options, the renewal periods for real estate leases range from one to 10 years and the renewal periods for berthing agreements range from one to 20 years. Generally, we do not include renewal options as a component of our present value calculation for berthing agreements. However, for certain real estate leases, we include them.
In June of 2021, we exercised our option under our operating lease with SMBC Leasing and Finance, Inc (the "Lessor") to purchase Terminal A at PortMiami in July 2021 for the pre-agreed purchase price of $220.0 million. Upon purchase of the terminal lease in July 2021, the underlying asset was recorded as a leasehold improvement within Property and equipment, net. Our July 2021 purchase of the Port of Miami terminal eliminated the residual value guarantee and a requirement under the lease to post $181.1 million of cash collateral on or before July 18, 2021.
Additionally, we remeasured the ground lease related to the Terminal A lease based on a reassessed lease term resulting from our purchase option exercise. We determined that the ground lease should remain as an operating lease with adjustments to the operating lease liability and the related right-of-use asset in our Consolidated Balance Sheet.
As most of our leases do not provide an implicit rate, we use our incremental borrowing rate in determining the present value of lease payments. We estimate our incremental borrowing rates based on LIBOR and U.S. Treasury note rates corresponding to lease terms increased by the Company’s credit risk spread and reduced by the estimated impact of collateral. In addition, we have lease agreements with lease and non-lease components, which are generally accounted for separately. However, for berthing agreements, we account for the lease and non-lease components as a single lease component.
Finance Leases
Silversea Cruises operates the Silver Whisper under a finance lease. In May 2021, the finance lease for the Silver Whisper expiring in 2022 was amended to extend its expiration by 12 months and will now expire in 2023, subject to an option to purchase the ship. Additionally, certain scheduled payments have been deferred and are reflected in Long-term debt in our Consolidated Balance Sheet as of September 30, 2021. The total aggregate amount of the finance lease liabilities recorded for this ship was $31.5 million at September 30, 2021 and December 31, 2020. The lease payments on the Silver Whisper are subject to adjustments based on the LIBOR rate.
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The components of lease expense were as follows (in thousands):
Consolidated Statement of Comprehensive Loss Classification Quarter Ended September 30, 2021 Nine Months Ended September 30, 2021
Lease costs:
Operating lease costs Commission, transportation and other $ 1,626  $ 1,626 
Operating lease costs Other operating expenses 5,424  15,365 
Operating lease costs Marketing, selling and administrative expenses 5,957  14,468 
Financial lease costs:
Amortization of right-of-use-assets Depreciation and amortization expenses 3,790  11,517 
Interest on lease liabilities Interest expense, net of interest capitalized 1,095  1,769 
Total lease costs $ 17,892  $ 44,745 

Consolidated Statement of Comprehensive Loss Classification Quarter Ended September 30, 2020 Nine Months Ended September 30, 2020
Lease costs:
Operating lease costs Commission, transportation and other $ 17,648  $ 50,268 
Operating lease costs Other operating expenses 7,179  21,920 
Operating lease costs Marketing, selling and administrative expenses 5,686  16,716 
Financial lease costs:
Amortization of right-of-use-assets Depreciation and amortization expenses 946  2,941 
Interest on lease liabilities Interest expense, net of interest capitalized 557  3,754 
Total lease costs $ 32,016  $ 95,599 
In addition, certain of our berthing agreements include variable lease costs based on the number of passengers berthed. During the quarter and nine months ended September 30, 2021, we had no variable lease costs recorded within Commission, transportation and other in our consolidated statement of comprehensive loss.
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Weighted average of the remaining lease terms and weighted average discount rates are as follows:
As of September 30, 2021 As of December 31, 2020
Weighted average of the remaining lease term
Operating leases 17.9 7.8
Finance leases 42.7 41.2
Weighted average discount rate
Operating leases 6.48  % 4.59  %
Finance leases 6.54  % 6.89  %
Supplemental cash flow information related to leases is as follows (in thousands):
Nine Months Ended September 30, 2021 Nine Months Ended September 30, 2020
Cash paid for amounts included in the measurement of lease liabilities:
Operating cash flows from operating leases $ 20,682  $ 97,903 
Operating cash flows from finance leases $ 1,769  $ 3,754 
Financing cash flows from finance leases $ 15,058  $ 13,291 

As of September 30, 2021, maturities related to lease liabilities were as follows (in thousands):
Year Operating Leases Finance Leases
Remainder of 2021 $ 31,647  $ 23,133 
2022 96,341  31,732 
2023 104,195  21,918 
2024 85,064  12,529 
2025 79,782  12,566 
Thereafter 900,471  396,171 
Total lease payments 1,297,500  498,049 
Less: Interest (677,060) (300,642)
Present value of lease liabilities $ 620,440  $ 197,407 


Note 9. Commitments and Contingencies
Ship Purchase Obligations
Our future capital commitments consist primarily of new ship orders. As of September 30, 2021, two Oasis-class ships and three ships of a new generation, known as our Icon-class, are on order for our Royal Caribbean International brand with an aggregate capacity of approximately 28,200 berths. As of September 30, 2021, we had two Edge-class ships on order for our Celebrity Cruises brand with an aggregate capacity of approximately 6,500 berths. Additionally, as of September 30, 2021, we have three ships on order for our Silversea Cruises brand with an aggregate capacity of approximately 2,060 berths.
21

COVID-19 has impacted shipyard operations which has and may continue to result in delays of our previously contracted ship deliveries. As of September 30, 2021, the dates that the ships on order by our Global and Partner Brands are expected to be delivered, subject to change in the event of construction delays, and their approximate berths are as follows:
Ship Shipyard Expected Delivery Dates Approximate
Berths
Royal Caribbean International —
Oasis-class:
Wonder of the Seas Chantiers de l'Atlantique 1st Quarter 2022 5,700
Unnamed Chantiers de l'Atlantique 2nd Quarter 2024 5,700
Icon-class:
Icon of the Seas Meyer Turku Oy 3rd Quarter 2023 5,600
Unnamed Meyer Turku Oy 2nd Quarter 2025 5,600
Unnamed Meyer Turku Oy 2nd Quarter 2026 5,600
Celebrity Cruises —
Edge-class:
Celebrity Beyond Chantiers de l'Atlantique 2nd Quarter 2022 3,250
Unnamed Chantiers de l'Atlantique 4th Quarter 2023 3,250
Silversea Cruises — (1)
Muse-Class:
Silver Dawn Fincantieri 4th Quarter 2021 600
Evolution Class:
Unnamed Meyer Werft 2nd Quarter 2023 730
Unnamed Meyer Werft 2nd Quarter 2024 730
TUI Cruises (50% joint venture)
Mein Schiff 7 Meyer Turku Oy 2nd Quarter 2024 2,900
Unnamed Fincantieri 4th Quarter 2024 4,100
Unnamed Fincantieri 2nd Quarter 2026 4,100
Total Berths 47,860

(1)    The revenue impact from Silversea Cruises' new ships will be recognized on a three-month reporting lag from when the ships enter service. Refer to Note 1. General for further information.
In addition, as of September 30, 2021, we have an agreement in place with Chantiers de l'Atlantique to build an additional Edge-class ship for delivery in 2025, which is contingent upon completion of conditions precedent and financing.
In September 2021, we amended the credit agreements for the first and second Evolution-class ships to increase their maximum loan amounts by €175.6 million on an aggregate basis, or approximately $203.5 million based on the exchange rate at September 30, 2021. The increase in the loan amounts will finance ship design modifications that incorporate innovative sustainability features and additional premium cabins, increasing the capacity for each ship to 730 berths. At our election, interest on incremental portion of each loan will accrue either (1) at a fixed rate of 4.34% and 4.38%, respectively (inclusive of the applicable margin) or (2) at a floating rate equal to LIBOR plus 0.99% and 1.03%, respectively.
As of September 30, 2021, the aggregate cost of our ships on order presented in the table above, excluding any ships on order by our Partner Brands, was approximately $12.8 billion, of which we had deposited $784.8 million as of such date. Approximately 62.5% of the aggregate cost was exposed to fluctuations in the Euro exchange rate at September 30, 2021. Refer to Note 12. Fair Value Measurements and Derivative Instruments for further information.


Litigation
22

As previously reported, two lawsuits were filed against us in August 2019 in the U.S. District Court for the Southern District of Florida (the "Court") under Title III of the Cuban Liberty and Democratic Solidarity Act, also known as the Helms-Burton Act. The complaint filed by Havana Docks Corporation ("Havana Docks Action") alleges it holds an interest in the Havana Cruise Port Terminal, and the complaint filed by Javier Garcia-Bengochea (the "Port of Santiago Action") alleges that he holds an interest in the Port of Santiago, Cuba, both of which were expropriated by the Cuban government. The complaints further allege that we trafficked in those properties by embarking and disembarking passengers at these facilities. The plaintiffs seek all available statutory remedies, including the value of the expropriated property, plus interest, treble damages, attorneys’ fees and costs. In the Havana Docks Action, we and the plaintiff have filed motions for summary judgment, which remain pending, and the trial has been scheduled for February 28, 2022. The Court dismissed the Port of Santiago Action with prejudice on the basis that the plaintiff lacked standing, and the plaintiff’s appeal of the dismissal is awaiting a decision by the appellate court. We believe we have meritorious defenses to the claims alleged in both the Havana Docks Action and the Port of Santiago Action, and we intend to vigorously defend ourselves against them. We believe it is unlikely the outcome of either action will have a material adverse impact to our financial condition, results of operations or cash flows. However, the outcome of litigation is inherently unpredictable and subject to significant uncertainties, and there can be no assurances that the final outcome of either case will not be material.
We are also routinely involved in claims typical within the cruise vacation industry. The majority of these claims are covered by insurance. We believe the outcome of such claims, net of expected insurance recoveries, will not have a material adverse impact on our financial condition or results of operations and cash flows.
Other
If any person acquires ownership of more than 50% of our common stock or, subject to certain exceptions, during any 24-month period, a majority of our board of directors is no longer comprised of individuals who were members of our board of directors on the first day of such period, we may be obligated to prepay indebtedness outstanding under our credit facilities, which we may be unable to replace on similar terms. Our public debt securities also contain change of control provisions that would be triggered by a third-party acquisition of greater than 50% of our common stock coupled with a ratings downgrade. If this were to occur, it would have an adverse impact on our liquidity and operations.

Note 10. Shareholders' Equity
Common Stock Issued
During March 2021, we issued 16.9 million shares of common stock, par value $0.01 per share, at a price of $91.00 per share. We received net proceeds of $1.5 billion from the sale of our common stock, after deducting the estimated offering expenses payable by us.
Dividends
During the second quarter of 2020, we agreed with certain of our lenders not to pay dividends or engage in common stock repurchases for so long as our debt covenant waivers are in effect. In addition, in the event we declare a dividend or engage in share repurchases, we will need to repay the amounts deferred under our export credit facilities. Accordingly, we did not declare a dividend during the third quarter of 2021. Pursuant to amendments made to these agreements during the first quarter of 2021, the restrictions on paying cash dividends and effectuating share repurchases were extended through and including the third quarter of 2022.
During the first quarter of 2020, we declared a cash dividend on our common stock of $0.78 per share, which was paid in April 2020. During the first quarter of 2020, we also paid a cash dividend on our common stock of $0.78 per share, which was declared during the fourth quarter of 2019.
23









Note 11. Changes in Accumulated Other Comprehensive Loss
The following table presents the changes in accumulated other comprehensive loss by component for the nine months ended September 30, 2021 and 2020 (in thousands):
Accumulated Other Comprehensive Loss for the Nine Months Ended September 30, 2021 Accumulated Other Comprehensive Loss for the Nine Months Ended September 30, 2020
  Changes related to cash flow derivative hedges Changes in defined benefit plans Foreign currency translation adjustments Accumulated other comprehensive loss Changes related to cash flow derivative hedges Changes in defined benefit plans Foreign currency translation adjustments Accumulated other comprehensive loss
Accumulated comprehensive loss at beginning of the year $ (650,519) $ (65,542) $ (23,280) $ (739,341) $ (688,529) $ (45,558) $ (63,626) $ (797,713)
Other comprehensive income (loss) before reclassifications 23,752  313  11,255  35,320  (172,323) (18,503) (13,346) (204,172)
Amounts reclassified from accumulated other comprehensive loss 24,762  3,435  —  28,197  62,184  1,550  69,044  132,778 
Net current-period other comprehensive income (loss) 48,514  3,748  11,255  63,517  (110,139) (16,953) 55,698  (71,394)
Ending balance $ (602,005) $ (61,794) $ (12,025) $ (675,824) $ (798,668) $ (62,511) $ (7,928) $ (869,107)


















The following table presents reclassifications out of accumulated other comprehensive loss for the quarters and nine months ended September 30, 2021 and 2020 (in thousands):
  Amount of Gain (Loss) Reclassified from Accumulated Other Comprehensive Loss into Income  
Details About Accumulated Other Comprehensive Loss Components Quarter Ended September 30, 2021 Quarter Ended September 30, 2020 Nine Months Ended September 30, 2021 Nine Months Ended September 30, 2020 Affected Line Item in Statements of
Comprehensive Loss
Gain (loss) on cash flow derivative hedges:      
Interest rate swaps $ (11,418) $ (6,532) $ (32,376) $ (15,939) Interest expense, net of interest capitalized
Foreign currency forward contracts (3,905) (3,782) (11,541) (10,899) Depreciation and amortization expenses
Foreign currency forward contracts (505) (1,511) (2,311) (5,855) Other income (expense)
Fuel swaps (2) 536  (416) 3,029  Other income (expense)
Fuel swaps 10,600  (5,598) 21,882  (32,520) Fuel
  (5,230) (16,887) (24,762) (62,184)  
Amortization of defined benefit plans:      
Actuarial loss (1,145) (517) (3,435) (1,550) Payroll and related
  (1,145) (517) (3,435) (1,550)  
Release of net foreign cumulative translation due to sale or liquidation of businesses:
Foreign cumulative translation —  (34,697) —  (69,044) Other operating
Total reclassifications for the period $ (6,375) $ (52,101) $ (28,197) $ (132,778)  

During the nine months ended September 30, 2020, a $69.0 million loss was recorded within Other expense in our consolidated statements of comprehensive (loss) income, consisting of a $92.6 million loss resulting from the recognition of a currency translation adjustment, partially offset by the recognition of a deferred $23.6 million foreign exchange gain related to the Pullmantur net investment hedge. In connection with the Pullmantur reorganization in 2020, we no longer have significant involvement in the Pullmantur operations and these amounts previously deferred in Accumulated other comprehensive loss were recognized in earnings. Of the $69.0 million loss, $34.3 million and $34.7 million was released from Accumulated other comprehensive loss during the quarters ended June 30, 2020 and September 30, 2020, respectively.

24

Note 12. Fair Value Measurements and Derivative Instruments 
Fair Value Measurements
The estimated fair value of our financial instruments that are not measured at fair value, categorized based upon the fair value hierarchy, are as follows (in thousands): 
Fair Value Measurements at September 30, 2021 Using Fair Value Measurements at December 31, 2020 Using
Description Total Carrying Amount Total Fair Value
Level 1(1)
Level 2(2)
Level 3(3)
Total Carrying Amount Total Fair Value
Level 1(1)
Level 2(2)
Level 3(3)
Assets:
Cash and cash equivalents(4)
$ 3,289,326  $ 3,289,326  $ 3,289,326  $ —  $ —  $ 3,684,474  $ 3,684,474  $ 3,684,474  $ —  $ — 
Total Assets $ 3,289,326  $ 3,289,326  $ 3,289,326  $ —  $ —  $ 3,684,474  $ 3,684,474  $ 3,684,474  $ —  $ — 
Liabilities:
Long-term debt (including current portion of debt)(5)
$ 20,642,096  $ 22,889,378  $ —  $ 22,889,378  $ —  $ 18,706,359  $ 20,981,040  $ —  $ 20,981,040  $ — 
Total Liabilities $ 20,642,096  $ 22,889,378  $ —  $ 22,889,378  $ —  $ 18,706,359  $ 20,981,040  $ —  $ 20,981,040  $ — 
(1) Inputs based on quoted prices (unadjusted) in active markets for identical assets or liabilities that we have the ability to access. Valuation of these items does not entail a significant amount of judgment.
(2) Inputs other than quoted prices included within Level 1 that are observable for the liability, either directly or indirectly. For unsecured revolving credit facilities and unsecured term loans, fair value is determined utilizing the income valuation approach. This valuation model takes into account the contract terms of our debt such as the debt maturity and the interest rate on the debt. The valuation model also takes into account the creditworthiness of the Company.
(3) Inputs that are unobservable. The Company did not use any Level 3 inputs as of September 30, 2021 and December 31, 2020.
(4) Consists of cash and marketable securities with original maturities of less than 90 days.
(5) Consists of unsecured revolving credit facilities, senior notes, term loans and convertible notes. These amounts do not include our finance lease obligations or commercial paper.

Other Financial Instruments 
The carrying amounts of accounts receivable, accounts payable, accrued interest, accrued expenses and commercial paper approximate fair value at September 30, 2021 and December 31, 2020.
Assets and liabilities that are recorded at fair value have been categorized based upon the fair value hierarchy. The following table presents information about the Company’s financial instruments recorded at fair value on a recurring basis (in thousands):
  Fair Value Measurements at September 30, 2021 Using Fair Value Measurements at December 31, 2020 Using
Description Total
Level 1(1)
Level 2(2)
Level 3(3)
Total
Level 1(1)
Level 2(2)
Level 3(3)
Assets:                
Derivative financial instruments(4)
$ 97,519  $ —  $ 97,519  $ —  $ 108,539  $ —  $ 108,539  $ — 
Total Assets $ 97,519  $ —  $ 97,519  $ —  $ 108,539  $ —  $ 108,539  $ — 
Liabilities:                
Derivative financial instruments(5)
$ 173,193  $ —  $ 173,193  $ —  $ 259,705  $ —  $ 259,705  $ — 
Total Liabilities $ 173,193  $ —  $ 173,193  $ —  $ 259,705  $ —  $ 259,705  $ — 
(1)Inputs based on quoted prices (unadjusted) in active markets for identical assets or liabilities that we have the ability to access. Valuation of these items does not entail a significant amount of judgment.
(2)Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly. For foreign currency forward contracts, interest rate swaps and fuel swaps, fair value is derived using valuation models that utilize the income valuation approach. These valuation models take into account the contract terms, such as maturity, as well as other inputs, such as foreign exchange rates and curves, fuel types, fuel curves and interest rate yield curves. Derivative instrument fair values take into account the creditworthiness of the counterparty and the Company.
(3)Inputs that are unobservable. No Level 3 inputs were used in fair value measurements of Other financial instruments as of September 30, 2021 and December 31, 2020.
(4)Consists of foreign currency forward contracts, interest rate swaps and fuel swaps. Refer to the "Fair Value of Derivative Instruments" table for breakdown by instrument type.
(5) Consists of foreign currency forward contracts, interest rate swaps and fuel swaps. Refer to the "Fair Value of Derivative Instruments" table for breakdown by instrument type.
The reported fair values are based on a variety of factors and assumptions. Accordingly, the fair values may not represent actual values of the financial instruments that could have been realized as of September 30, 2021 or December 31, 2020, or that will be realized in the future, and do not include expenses that could be incurred in an actual sale or settlement.
Nonfinancial Instruments Recorded at Fair Value on a Nonrecurring Basis
The following tables present information about the Company’s nonfinancial instruments recorded at fair value on a nonrecurring basis (in thousands):
Fair Value Measurements at September 30, 2021 Using
Description Total Carrying Amount Total Fair Value Level 3 Total Impairment for the nine months ended September 30, 2021
Long-lived assets(1) —  —  —  $ 40,643 
Total —  —  —  $ 40,643 
(1) During the quarter ended June 30, 2021, certain construction in progress assets were impaired due to a reduction in scope or the decision to not complete the projects. The impairment was calculated based on orderly liquidation values. The fair value of these assets was estimated as of June 30, 2021.
Fair Value Measurement at December 31, 2020 Using
Description Total Carrying Amount Total Fair Value Level 3 Total Impairment for the year ended December 31, 2020
Silversea Goodwill(1)
$ 508,578  $ 508,578  $ 508,578  $ 576,208 
Indefinite-life intangible asset(2)
318,700  318,700  318,700  30,800 
Long-lived assets(3)
577,193  577,193  577,193  727,063 
Right-of-use assets(4)
67,265  67,265  67,265  65,909 
Equity-method investments(5)
—  —  —  39,735 
Total $ 1,471,736  $ 1,471,736  $ 1,471,736  $ 1,439,715 
___________________________________________________________________________________________________
(1) We estimated the fair value of the Silversea Cruises reporting unit using a probability-weighted discounted cash flow model in combination with a market based valuation approach. The principal assumptions used in the discounted cash flow model were (i) the timing of our return to service, changes in market conditions and port or other restrictions; (ii) forecasted net revenues, primarily the timing of returning to normalized operations, occupancy rates from existing and expected ship deliveries, including options, and terminal growth rate; and (iii) weighted average cost of capital (i.e., discount rate). The discounted cash flow model used our 2020 projected operating results as a base. To that base we added future years’ cash flows through 2030 assuming multiple revenue and expense scenarios that reflect the impact of different global economic
environments for this period on the Silversea Cruises' reporting unit. We assigned a probability to each revenue and expense scenario. We discounted the projected cash flows using rates specific to the Silversea Cruises' reporting unit based on its weighted-average cost of capital, which was determined to be 12.75%. The fair value of Silversea Cruises’ goodwill was estimated as of March 31, 2020, the date the asset was last impaired.

(2) Amount represents the Silversea Cruises trade name which makes up the majority of our indefinite-life intangible assets, totaling $321.5 million. We estimated the fair value of the Silversea Cruises trade name using a discounted cash flow model and the relief-from-royalty method and used a discount rate of 13.25%. Significant inputs in performing the fair value assessment for the trade name were (i) forecasted net revenues, primarily the timing of returning to normalized operations, occupancy rates from existing and expected ship deliveries, including options, and terminal growth rate; (ii) the royalty rate of 3.0%; and (iii) weighted average cost of capital (i.e., discount rate). The fair value of the Silversea Cruises trade name was estimated as of March 31, 2020, the date the asset was last impaired.

(3) Impairments primarily relate to certain vessels during 2020. In addition, certain construction in progress projects generated impairments during the quarter ended September 30, 2020 and quarter ended December 31, 2020. For the vessels impaired during the quarter ended March 31, 2020, we estimated the fair value of two of our vessels using a blended indication from the income and cost approaches and the fair value of the remaining vessels was estimated primarily based on their orderly liquidation values. For the vessels impaired during the quarter ended June 30, 2020, we estimated the fair value of the vessels using a modified market approach based on the carrying values and orderly liquidation values of the vessels. For the vessels impaired during the quarter ended December 31, 2020, we estimated the fair value of the three Azamara vessels using a market approach. A significant input in performing the fair value assessments for these vessels was management's expected use of the vessels, which takes into consideration forecasted operating results. During the quarter ended September 30, 2020 and quarter ended December 31, 2020, construction in progress assets were impaired due to a reduction in scope or the decision to not complete the projects. The impairment was calculated based on orderly liquidation values. The fair value of these assets was estimated as of the date the asset was last impaired.

(4) Impairments to our right-of-use assets relate to certain of our berthing arrangements and a ship operating lease. We estimated the fair value of the berthing arrangements using estimated projected discounted cash flows and the fair value of the ship operating lease was estimated using a market approach. The fair value of the berthing arrangements was estimated as of March 31, 2020, the date these assets were last impaired. A significant input in performing the fair value assessments for these assets was our expected passenger headcount. The fair value of the ship operating lease was estimated as of December 31, 2020, the date this asset was last impaired, and significant inputs in performing the fair value assessment using the market approach for this asset were the expected rate of return and remaining lease payments.

(5) We estimated the fair value of our other than temporarily impaired equity-method investments using a discounted cash flow model. A significant input in performing the fair value assessments for these assets was forecasted operating results for these investments. The fair value of these equity-method investments was estimated as of March 31, 2020, the date these assets were last impaired. For further information on our equity method investments, refer to Note 6. Other Assets.
Master Netting Agreements
We have master International Swaps and Derivatives Association (“ISDA”) agreements in place with our derivative instrument counterparties. These ISDA agreements generally provide for final close out netting with our counterparties for all positions in the case of default or termination of the ISDA agreement. We have determined that our ISDA agreements provide us with rights of setoff on the fair value of derivative instruments in a gain position and those in a loss position with the same counterparty. We have elected not to offset such derivative instrument fair values in our consolidated balance sheets.
See Credit Related Contingent Features for further discussion on contingent collateral requirements for our derivative instruments.
The following table presents information about the Company’s offsetting of financial assets under master netting agreements with derivative counterparties (in thousands):
Gross Amounts not Offset in the Consolidated Balance Sheet that are Subject to Master Netting Agreements
As of September 30, 2021 As of December 31, 2020
Gross Amount of Derivative Assets Presented in the Consolidated Balance Sheet Gross Amount of Eligible Offsetting
Recognized
Derivative Liabilities 		Cash Collateral
Received 		Net Amount of
Derivative Assets 		Gross Amount of Derivative Assets Presented in the Consolidated Balance Sheet Gross Amount of Eligible Offsetting
Recognized
Derivative Liabilities 		Cash Collateral
Received 		Net Amount of
Derivative Assets
Derivatives subject to master netting agreements $ 97,519  $ (66,874) $ —  $ 30,645  $ 108,539  $ (80,743) $ —  $ 27,796 
Total $ 97,519  $ (66,874) $ —  $ 30,645  $ 108,539  $ (80,743) $ —  $ 27,796 

The following table presents information about the Company’s offsetting of financial liabilities under master netting agreements with derivative counterparties (in thousands):
Gross Amounts not Offset in the Consolidated Balance Sheet that are Subject to Master Netting Agreements
As of September 30, 2021 As of December 31, 2020
Gross Amount of Derivative Liabilities Presented in the Consolidated Balance Sheet Gross Amount of Eligible Offsetting
Recognized
Derivative Assets 		Cash Collateral
Pledged 		Net Amount of
Derivative Liabilities 		Gross Amount of Derivative Liabilities Presented in the Consolidated Balance Sheet Gross Amount of Eligible Offsetting
Recognized
Derivative Assets 		Cash Collateral
Pledged 		Net Amount of
Derivative Liabilities
Derivatives subject to master netting agreements $ (173,193) $ 66,874  $ 65,581  $ (40,738) $ (259,705) $ 80,743  $ 57,273  $ (121,689)
Total $ (173,193) $ 66,874  $ 65,581  $ (40,738) $ (259,705) $ 80,743  $ 57,273  $ (121,689)
Concentrations of Credit Risk
We monitor our credit risk associated with financial and other institutions with which we conduct significant business and to minimize these risks, we select counterparties with credit risks acceptable to us and we seek to limit our exposure to an individual counterparty. Credit risk, including but not limited to counterparty nonperformance under derivative instruments, our credit facilities and new ship progress payment guarantees, is not considered significant, as we primarily conduct business with large, well-established financial institutions, insurance companies and export credit agencies many of which we have long-term relationships with and which have credit risks acceptable to us or where the credit risk is spread out among a large number of counterparties. As of September 30, 2021, we had counterparty credit risk exposure under our derivative instruments of $17.8 million, which were limited to the cost of replacing the contracts in the event of non-performance by the counterparties to the contracts, the majority of which are currently our lending banks. We do not anticipate nonperformance by any of our significant counterparties. In addition, we have established guidelines we follow regarding credit ratings and instrument maturities to maintain safety and liquidity. We do not normally require collateral or other security to support credit relationships; however, in certain circumstances this option is available to us.
Derivative Instruments
We are exposed to market risk attributable to changes in interest rates, foreign currency exchange rates and fuel prices. We try to mitigate these risks through a combination of our normal operating and financing activities and through the use of derivative financial instruments pursuant to our hedging practices and policies. The financial impact of these hedging instruments is primarily offset by corresponding changes in the underlying exposures being hedged. We achieve this by closely matching the notional amount, term and conditions of the derivative instrument with the underlying risk being hedged. Although certain of our derivative financial instruments do not qualify or are not accounted for under hedge accounting, our objective is not to hold or issue derivative financial instruments for trading or other speculative purposes. 
We enter into various forward, swap and option contracts to manage our interest rate exposure and to limit our exposure to fluctuations in foreign currency exchange rates and fuel prices. These instruments are recorded on the balance sheet at their fair value and the vast majority are designated as hedges. We also use non-derivative financial instruments designated as hedges of our net investment in our foreign operations and investments.
At inception of the hedge relationship, a derivative instrument that hedges the exposure to changes in the fair value of a firm commitment or a recognized asset or liability is designated as a fair value hedge. A derivative instrument that hedges a forecasted transaction or the variability of cash flows related to a recognized asset or liability is designated as a cash flow hedge.
Changes in the fair value of derivatives that are designated as fair value hedges are offset against changes in the fair value of the underlying hedged assets, liabilities or firm commitments. Gains and losses on derivatives that are designated as cash flow hedges are recorded as a component of Accumulated other comprehensive loss until the underlying hedged transactions are recognized in earnings. The foreign currency transaction gain or loss of our non-derivative financial instruments and the changes in the fair value of derivatives designated as hedges of our net investment in foreign operations and investments are recognized as a component of Accumulated other comprehensive loss along with the associated foreign currency translation adjustment of the foreign operation or investment, with the amortization of excluded components affecting earnings. 
On an ongoing basis, we assess whether derivatives used in hedging transactions are "highly effective" in offsetting changes in the fair value or cash flow of hedged items. For our net investment hedges, we use the dollar offset method to measure effectiveness. For all other hedging programs, we use the long-haul method to assess hedge effectiveness using regression analysis for each hedge relationship. The methodology for assessing hedge effectiveness is applied on a consistent basis for each one of our hedging programs (i.e., interest
rate, foreign currency ship construction, foreign currency net investment and fuel). For our regression analyses, we use an observation period of up to three years, utilizing market data relevant to the hedge horizon of each hedge relationship. High effectiveness is achieved when a statistically valid relationship reflects a high degree of offset and correlation between the changes in the fair values of the derivative instrument and the hedged item. If it is determined that a derivative is not highly effective as a hedge or hedge accounting is discontinued, any change in fair value of the derivative since the last date at which it was determined to be effective is recognized in earnings.
Cash flows from derivative instruments that are designated as fair value or cash flow hedges are classified in the same category as the cash flows from the underlying hedged items. In the event that hedge accounting is discontinued, cash flows subsequent to the date of discontinuance are classified within investing activities. Cash flows from derivative instruments not designated as hedging instruments are classified as investing activities. 
We consider the classification of the underlying hedged item’s cash flows in determining the classification for the designated derivative instrument’s cash flows. We classify derivative instrument cash flows from hedges of benchmark interest rate or hedges of fuel expense as operating activities due to the nature of the hedged item. Likewise, we classify derivative instrument cash flows from hedges of foreign currency risk on our newbuild ship payments as investing activities.
Interest Rate Risk
Our exposure to market risk for changes in interest rates primarily relates to our debt obligations including future interest payments. At September 30, 2021 and December 31, 2020, approximately 67.5% and 64.5%, respectively, of our debt was effectively fixed. We use interest rate swap agreements to modify our exposure to interest rate movements and to manage our interest expense.
Market risk associated with our fixed-rate debt is the potential increase in fair value resulting from a decrease in interest rates. We use interest rate swap agreements that effectively convert a portion of our fixed-rate debt to a floating-rate basis to manage this risk. At September 30, 2021 and December 31, 2020, we maintained interest rate swap agreements on the following fixed-rate debt instruments:
Debt Instrument Swap Notional as of September 30, 2021 (in thousands) Maturity Debt Fixed Rate Swap Floating Rate: LIBOR plus All-in Swap Floating Rate as of September 30, 2021
Oasis of the Seas term loan
$ 17,500  October 2021 5.41% 3.87% 4.08%
Unsecured senior notes 650,000  November 2022 5.25% 3.63% 3.76%
$ 667,500 
These interest rate swap agreements are accounted for as fair value hedges.
Market risk associated with our long-term floating-rate debt is the potential increase in interest expense from an increase in interest rates. We use interest rate swap agreements that effectively convert a portion of our floating-rate debt to a fixed-rate basis to manage this risk. At September 30, 2021 and December 31, 2020, we maintained interest rate swap agreements on the following floating-rate debt instruments:
Debt Instrument Swap Notional as of September 30, 2021 (in thousands) Maturity Debt Floating Rate All-in Swap Fixed Rate
Celebrity Reflection term loan
$ 190,896  October 2024 LIBOR plus 0.40% 2.85%
Quantum of the Seas term loan
336,875  October 2026 LIBOR plus 1.30% 3.74%
Anthem of the Seas term loan
362,500  April 2027 LIBOR plus 1.30% 3.86%
Ovation of the Seas term loan
484,167  April 2028 LIBOR plus 1.00% 3.16%
Harmony of the Seas term loan (1)
468,736  May 2028 EURIBOR plus 1.15% 2.26%
Odyssey of the Seas term loan (2)
440,833  October 2032 LIBOR plus 0.96% 3.21%
Odyssey of the Seas term loan (2)
191,667  October 2032 LIBOR plus 0.96% 2.84%
$ 2,475,674 
(1)Interest rate swap agreements hedging the Euro-denominated term loan for Harmony of the Seas include EURIBOR zero-floor matching the hedged debt EURIBOR zero-floor. Amount presented is based on the exchange rate as of September 30, 2021.
(2)Interest rate swap agreements hedging the term loan of Odyssey of the Seas include LIBOR zero-floors matching the debt LIBOR zero-floor. The effective dates of the $440.8 million and $191.7 million interest rate swap agreements are October 2020 and October 2022, respectively. The unsecured term loan for the financing of Odyssey of the Seas was drawn on March 2021.
These interest rate swap agreements are accounted for as cash flow hedges.
The notional amount of interest rate swap agreements related to outstanding debt and our current unfunded financing arrangements as of September 30, 2021 and December 31, 2020 was $3.1 billion and $3.4 billion, respectively.
Foreign Currency Exchange Rate Risk
Derivative Instruments
Our primary exposure to foreign currency exchange rate risk relates to our ship construction contracts denominated in Euros, our foreign currency denominated debt and our international business operations. We enter into foreign currency forward contracts to manage portions of the exposure to movements in foreign currency exchange rates. As of September 30, 2021, the aggregate cost of our ships on order was $12.8 billion, of which we had deposited $784.8 million as of such date. These amounts do not include any ships placed on order that are contingent upon completion of conditions precedent and/or financing, any ships on order by our Partner Brands and any ships on order placed by Silversea Cruises during the reporting lag period. Refer to Note 9. Commitments and Contingencies, for further information on our ships on order.  At September 30, 2021 and December 31, 2020, approximately 62.5% and 66.3%, respectively, of the aggregate cost of the ships under construction was exposed to fluctuations in the Euro exchange rate. Our foreign currency forward contract agreements are accounted for as cash flow or net investment hedges depending on the designation of the related hedge.
On a regular basis, we enter into foreign currency forward contracts and, from time to time, we utilize cross-currency swap agreements and collar options to minimize the volatility resulting from the remeasurement of net monetary assets and liabilities denominated in a currency other than our functional currency or the functional currencies of our foreign subsidiaries. During the third quarter of 2021, we maintained an average of approximately $508.8 million of these foreign currency forward contracts. These instruments are not designated as hedging instruments. For the quarters ended September 30, 2021 and 2020, changes in the fair value of the foreign currency forward contracts resulted in a loss and a gain of $12.9 million and $4.9 million, respectively. For the nine months ended September 30, 2021 and 2020, changes in the fair value of the foreign currency forward contracts resulted in a loss of $25.9 million and $35.3 million, respectively. These amounts were recognized in earnings within Other income (expense) in our consolidated statements of comprehensive loss.
We consider our investments in our foreign operations to be denominated in relatively stable currencies and to be of a long-term nature. As of September 30, 2021, we maintained foreign currency forward contracts and designated them as hedges of a portion of our net investments in TUI Cruises of €245.0 million, or approximately $283.9 million based on the exchange rate at September 30, 2021. These forward currency contracts mature in October 2021.
The notional amount of outstanding foreign exchange contracts, excluding the forward contracts entered into to minimize remeasurement volatility, as of both September 30, 2021 and December 31, 2020 was $3.0 billion and $3.1 billion, respectively.
Non-Derivative Instruments
We also address the exposure of our investments in foreign operations by denominating a portion of our debt in our subsidiaries’ and investments’ functional currencies and designating it as a hedge of these subsidiaries and investments. We had designated debt as a hedge of our net investments primarily in TUI Cruises of €93.0 million, or approximately $107.8 million, as of September 30, 2021. As of December 31, 2020, we had designated debt as a hedge of our net investments in TUI Cruises of €215.0 million, or approximately $263.0 million.
Fuel Price Risk
Our exposure to market risk for changes in fuel prices relates primarily to the consumption of fuel on our ships. We use fuel swap agreements to mitigate the financial impact of fluctuations in fuel prices.
Our fuel swap agreements are generally accounted for as cash flow hedges. In the case that our hedged forecasted fuel consumption is not probable of occurring, hedge accounting will be discontinued and the related accumulated other comprehensive gain or loss will be reclassified to Other income (expense) immediately. For hedged forecasted fuel consumption that remains possible of occurring, hedge accounting will be discontinued and the related accumulated other comprehensive gain or loss will remain in accumulated other comprehensive gain or loss until the underlying hedged transactions are recognized in earnings or the related hedged forecasted fuel consumption is deemed probable of not occurring.
The prior suspension of our cruise operations due to the COVID-19 pandemic and our gradual resumption of cruise operations has resulted in reductions to our forecasted fuel purchases. During the quarter and nine months ended September 30, 2021, we discontinued cash flow hedge accounting on 48.1 thousand and 95.8 thousand metric tons of fuel swap agreements, respectively, maturing in 2021 and 2022, which resulted in the reclassification of a net $2.4 million gain and $1.9 million loss from Accumulated other comprehensive loss to Other income (expense), respectively. During the quarter and nine months ended September 30, 2020, we discontinued cash flow hedge accounting on 0.2 million and 0.5 million metric tons of our fuel swap agreements maturing in 2020 and 2021, respectively, which resulted in the reclassification of net losses of $7.9 million and $76.3 million in 2020 and 2021, respectively, from Accumulated other
comprehensive loss to Other income (expense). Changes in the fair value of fuel swaps for which cash flow hedge accounting was discontinued are currently recognized in Other income (expense) each reporting period through the maturity dates of the fuel swaps.
Future suspension of our operations or modifications to our itineraries may affect our expected forecasted fuel purchases which could result in further discontinuance of fuel swap cash flow hedge accounting and the reclassification of deferred gains or losses from Accumulated other comprehensive loss into earnings. Refer to Risk Factors in Part II, Item 1A. for further discussion on risks related to COVID-19.
At September 30, 2021, we have hedged the variability in future cash flows for certain forecasted fuel transactions occurring through 2023. As of September 30, 2021 and December 31, 2020, we had the following outstanding fuel swap agreements:
  Fuel Swap Agreements
  As of September 30, 2021 As of December 31, 2020
Designated as hedges: (metric tons)
2021 124,050  385,050 
2022 419,700  389,650 
2023 82,400  82,400 
  Fuel Swap Agreements
  As of September 30, 2021 As of December 31, 2020
  (% hedged)
Designated hedges as a % of projected fuel purchases:    
2021 43  % 40  %
2022 28  % 23  %
2023 5  % 5  %
Fuel Swap Agreements
As of September 30, 2021 As of December 31, 2020
Not designated as hedges: (metric tons)
2021 21,900  229,850 
2022 62,750  14,650 

As of September 30, 2021, $42.9 million of estimated unrealized gain associated with our cash flow hedges pertaining to fuel swap agreements is expected to be reclassified to earnings from Accumulated other comprehensive loss within the next twelve months. Reclassification is expected to occur as the result of fuel consumption associated with our hedged forecasted fuel purchases.
The fair value and line item caption of derivative instruments recorded within our consolidated balance sheets were as follows (in thousands):
Fair Value of Derivative Instruments
Asset Derivatives Liability Derivatives
Balance Sheet Location As of September 30, 2021 As of December 31, 2020 Balance Sheet Location As of September 30, 2021 As of December 31, 2020
Fair Value Fair Value Fair Value Fair Value
Derivatives designated as hedging instruments under ASC 815-20(1)
Interest rate swaps Other assets $ 10,407  $ 17,271  Other long-term liabilities $ 88,891  $ 144,653 
Interest rate-swaps Derivative financial instruments 16  261  Derivative financial instruments —  — 
Foreign currency forward contracts Derivative financial instruments 19,143  63,894  Derivative financial instruments 79,305  13,294 
Foreign currency forward contracts Other assets —  20,836  Other long-term liabilities 4,997  7,306 
Fuel swaps Derivative financial instruments 42,902  5,093  Derivative financial instruments —  25,203 
Fuel swaps Other assets 16,080  350  Other long-term liabilities —  50,117 
Total derivatives designated as hedging instruments under 815-20 $ 88,548  $ 107,705  $ 173,193  $ 240,573 
Derivatives not designated as hedging instruments under ASC 815-20
Foreign currency forward contracts Derivative financial instruments $ —  $ —  Derivative financial instruments $ —  $ 160 
Fuel swaps Derivative financial instruments 8,346  834  Derivative financial instruments —  18,028 
Fuel swaps Other Assets 625  —  Other long-term liabilities —  944 
Total derivatives not designated as hedging instruments under 815-20 8,971  834  —  19,132 
Total derivatives $ 97,519  $ 108,539  $ 173,193  $ 259,705 
(1)Accounting Standard Codification 815-20 “Derivatives and Hedging.”
The location and amount of gain or (loss) recognized in income on fair value and cash flow hedging relationships were as follows (in thousands):
Quarter Ended September 30, 2021 Quarter Ended September 30, 2020
Fuel Expense Depreciation and Amortization Expenses Interest Income (Expense) Other Income (Expense) Fuel Expense Depreciation and Amortization Expenses Interest Income (Expense) Other Income (Expense)
Total amounts of income and expense line items presented in the statement of financial performance in which the effects of fair value or cash flow hedges are recorded $118,127 $325,907 $(426,875) $37,230 $53,815 $317,139 $(254,332) $(10,853)
The effects of fair value and cash flow hedging:
Gain or (loss) on fair value hedging relationships in Subtopic 815-20
Interest contracts
Hedged items n/a n/a $2,100 $— n/a n/a $2,379 $—
Derivatives designated as hedging instruments n/a n/a $383 $— n/a n/a $39 $—
Gain or (loss) on cash flow hedging relationships in Subtopic 815-20
Interest contracts
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income n/a n/a $(11,418) n/a n/a n/a $(6,532) n/a
Commodity contracts
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income $10,600 n/a n/a $(2) $(5,598) n/a n/a $536
Foreign exchange contracts
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income n/a $(3,905) n/a $(505) n/a $(3,782) n/a $(1,511)
Nine Months Ended September 30, 2021 Nine Months Ended September 30, 2020
Fuel Expense Depreciation and Amortization Expenses Interest Income (Expense) Other Income (Expense) Fuel Expense Depreciation and Amortization Expenses Interest Income (Expense) Other Income (Expense)
Total amounts of income and expense line items presented in the statement of financial performance in which the effects of fair value or cash flow hedges are recorded $219,058 $959,512 $(994,669) $66,771 $327,275 $961,226 $(555,392) $(127,537)
The effects of fair value and cash flow hedging:
Gain or (loss) on fair value hedging relationships in Subtopic 815-20
Interest contracts
Hedged items n/a n/a $7,098 — n/a n/a $(20,855) $—
Derivatives designated as hedging instruments n/a n/a $148 — n/a n/a $23,338 $—
Gain or (loss) on cash flow hedging relationships in Subtopic 815-20
Interest contracts
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income n/a n/a $(32,375) n/a n/a n/a $(15,939) n/a
Commodity contracts
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income $21,882 n/a n/a $(416) $(32,520) n/a n/a $3,029
Foreign exchange contracts
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income n/a $(11,541) n/a $(2,311) n/a $(10,899) n/a $(5,855)

The carrying value and line item caption of non-derivative instruments designated as hedging instruments recorded within our consolidated balance sheets were as follows (in thousands):
Carrying Value
Non-derivative instrument designated as
hedging instrument under ASC 815-20 		Balance Sheet Location As of September 30, 2021 As of December 31, 2020
Foreign currency debt Current portion of debt $ 39,207  $ 43,696 
Foreign currency debt Long-term debt 68,566  219,335 
$ 107,773  $ 263,031 
The effect of derivative instruments qualifying and designated as hedging instruments and the related hedged items in fair value hedges on the consolidated statements of comprehensive loss was as follows (in thousands):
Derivatives and Related Hedged Items under ASC 815-20 Fair Value Hedging Relationships Location of Gain (Loss) Recognized in Income on Derivative and Hedged Item Amount of Gain (Loss)
Recognized in
Income on Derivative 		Amount of Gain (Loss)
Recognized in
Income on Hedged Item
Quarter Ended September 30, 2021 Quarter Ended September 30, 2020 Nine Months Ended September 30, 2021 Nine Months Ended September 30, 2020 Quarter Ended September 30, 2021 Quarter Ended September 30, 2020 Nine Months Ended September 30, 2021 Nine Months Ended September 30, 2020
Interest rate swaps Interest expense, net of interest capitalized $ 383  $ 39  $ 148  $ 23,338  $ 2,100  $ 2,379  $ 7,098  $ (20,855)
e fair value and line item caption of derivative instruments recorded within our consolidated balance sheets for the cumulative basis adjustment for fair value hedges were as follows (in thousands):
Line Item in the Statement of Financial Position Where the Hedged Item is Included Carrying Amount of the Hedged Liabilities Cumulative amount of Fair Value Hedging Adjustment Included in the Carrying Amount of the Hedged Liabilities
As of September 30, 2021 As of December 31, 2020 As of September 30, 2021 As of December 31, 2020
Current portion of debt and Long-term debt $ 659,209  $ 700,331  $ 10,413  $ 17,512 
The effect of derivative instruments qualifying and designated as cash flow hedging instruments on the consolidated financial statements was as follows (in thousands):.
Derivatives
under ASC 815-20  Cash Flow Hedging Relationships 		Amount of Gain (Loss) Recognized in
Accumulated Other
Comprehensive Loss on Derivatives 
Location of
Gain (Loss)
Reclassified
from
Accumulated
Other Comprehensive
Loss into Income
Amount of Gain (Loss) Reclassified from
Accumulated Other Comprehensive Loss into Income 
Quarter Ended September 30, 2021 Quarter Ended September 30, 2020 Nine Months Ended September 30, 2021 Nine Months Ended September 30, 2020 Quarter Ended September 30, 2021 Quarter Ended September 30, 2020 Nine Months Ended September 30, 2021 Nine Months Ended September 30, 2020
Interest rate swaps $ 1,534  $ (42,488) $ 29,228  $ (90,677) Interest expense, net of interest capitalized $ (11,418) $ (6,532) $ (32,376) $ (15,939)
Foreign currency forward contracts (48,221) 96,821  (150,376) 39,161  Depreciation and amortization expenses (3,905) (3,782) (11,541) (10,899)
Foreign currency forward contracts —  —  —  —  Other income (expense) (505) (1,511) (2,311) (5,855)
Fuel swaps —  —  —  —  Other income (expense) (2) 536  (416) 3,029 
Fuel swaps 28,193  (5,085) 144,900  (120,807) Fuel 10,600  (5,598) 21,882  (32,520)
  $ (18,494) $ 49,248  $ 23,752  $ (172,323)   $ (5,230) $ (16,887) $ (24,762) $ (62,184)
The table below represents amounts excluded from the assessment of effectiveness for our net investment hedging instruments for which the difference between changes in fair value and periodic amortization is recorded in accumulated other comprehensive loss (in thousands):

Gain (Loss) Recognized in Income (Net Investment Excluded Components) Nine Months Ended September 30, 2021
Net inception fair value at January 1, 2021 $ (1,915)
Amount of gain recognized in income on derivatives for the nine month period ended September 30, 2021 4,966 
Amount of gain (loss) remaining to be amortized in accumulated other comprehensive loss, as of September 30, 2021 (3,141)
Fair value at September 30, 2021 $ (90)
The effect of non-derivative instruments qualifying and designated as net investment hedging instruments on the consolidated financial statements was as follows (in thousands):
Amount of Gain (Loss) Recognized in Other Comprehensive Loss
Non-derivative instruments under ASC 815-20 Net
Investment Hedging Relationships 		Quarter Ended September 30, 2021 Quarter Ended September 30, 2020 Nine Months Ended September 30, 2021 Nine Months Ended September 30, 2020
Foreign Currency Debt $ 2,585  $ (16,732) $ 5,593  $ (16,784)

The effect of derivatives not designated as hedging instruments on the consolidated financial statements was as follows (in thousands):
    Amount of Gain (Loss) Recognized in Income on Derivatives
Derivatives Not Designated as Hedging
Instruments under ASC 815-20 		Location of
Gain (Loss) Recognized in
Income on Derivatives 		Quarter Ended September 30, 2021 Quarter Ended September 30, 2020 Nine Months Ended September 30, 2021 Nine Months Ended September 30, 2020
Foreign currency forward contracts Other income (expense) $ (12,880) $ 4,907  $ (25,854) $ (35,265)
Fuel swaps Other income (expense) 8,222  (13,112) 35,858  (89,471)
    $ (4,658) $ (8,205) $ 10,004  $ (124,736)
Credit Related Contingent Features
Our current interest rate derivative instruments require us to post collateral if our Standard & Poor’s and Moody’s credit ratings fall below specified levels. Specifically, under most of our agreements, if on the fifth anniversary of executing a derivative instrument, or on any succeeding fifth-year anniversary, our credit ratings for our senior unsecured debt is rated below BBB- by Standard & Poor’s and Baa3 by Moody’s, then the counterparty will periodically have the right to demand that we post collateral in an amount equal to the difference between (i) the net market value of all derivative transactions with such counterparty that have reached their fifth year anniversary, to the extent negative, and (ii) the applicable minimum call amount.
The amount of collateral required to be posted will change as, and to the extent, our net liability position increases or decreases by more than the applicable minimum call amount. If our credit rating for our senior unsecured debt is subsequently equal to or above BBB- by Standard & Poor’s or Baa3 by Moody’s, then any collateral posted at such time will be released to us and we will no longer be required to post collateral unless we meet the collateral trigger requirement, generally, at the next fifth-year anniversary.
As of September 30, 2021, our senior unsecured debt credit rating was B by Standard & Poor's and B2 by Moody's. As of September 30, 2021, seven of our interest rate derivative hedges had a term of at least five years requiring us to post collateral of $65.6 million to satisfy our obligations under our interest rate derivative agreements, taking into account any collateral waivers issued by banks. We expect that we will not need to provide additional collateral under these agreements in the next twelve months.
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Note 13. Restructuring Charges
In April 2020, we reduced our U.S. shoreside workforce by approximately 23% through permanent layoffs. We incurred severance costs of $28.0 million during the year ended December 31, 2020.
The following table summarizes our restructuring costs during the nine months ended September 30, 2021 as it relates to the April 2020 reduction in our workforce (in thousands):
Beginning balance January 1, 2021 Accruals Payments Ending balance September 30, 2021 Cumulative
Charges
Incurred 		Expected
Additional
Expenses
to be
Incurred
Termination benefits $ 4,257  $ 643  $ 4,311  $ 589  $ 28,596  $ — 
Total $ 4,257  $ 643  $ 4,311  $ 589  $ 28,596  $ — 

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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 
Cautionary Note Concerning Forward-Looking Statements
The discussion under this caption "Management's Discussion and Analysis of Financial Condition and Results of Operations" and elsewhere in this Quarterly Report on Form 10-Q includes "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact, business and industry prospects or future results of operations or financial position, made in this Quarterly Report on Form 10-Q are forward-looking. Words such as "anticipate," "believe," "could," "driving," "estimate," "expect," "goal," "intend," "may," "plan," "project," "seek," "should," "will," "would," "considering" and similar expressions are intended to further identify any of these forward-looking statements. Forward-looking statements reflect management's current expectations but they are based on judgments and are inherently uncertain. Furthermore, they are subject to risks, uncertainties and other factors that could cause our actual results, performance or achievements to differ materially from the future results, performance or achievements expressed or implied in those forward-looking statements. Examples of these risks, uncertainties and other factors include, but are not limited to, those discussed in this Quarterly Report on Form 10-Q and, in particular, the risks discussed under the caption "Risk Factors" in Part II., Item 1A. herein.
All forward-looking statements made in this Quarterly Report on Form 10-Q speak only as of the date of this filing.  Given these risks and uncertainties, readers are cautioned not to place undue reliance on such forward-looking statements. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.  
Overview
The discussion and analysis of our financial condition and results of operations is organized to present the following:
•a review of our financial presentation, including discussion of certain operational and financial metrics we utilize to assist us in managing our business;
•a discussion of our results of operations for the quarter and nine months ended September 30, 2021, compared to the same periods in 2020;
•a discussion of our business outlook; and
•a discussion of our liquidity and capital resources, including our future capital and contractual commitments and potential funding sources. 
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Critical Accounting Policies
For a discussion of our critical accounting policies, refer to Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations within our Annual Report on Form 10-K for the year ended December 31, 2020.
Seasonality
Historically, our revenues are seasonal based on demand for cruises. Demand has historically been strongest for cruises during the Northern Hemisphere’s summer months and holidays. In order to mitigate the impact of the winter weather in the Northern Hemisphere and to capitalize on the summer season in the Southern Hemisphere, our brands have focused on deployment to the Caribbean, Asia and Australia during that period.
Financial Presentation
Description of Certain Line Items
Revenues
Our revenues are comprised of the following:
•Passenger ticket revenues, which consist of revenue recognized from the sale of passenger tickets and the sale of air transportation to and from our ships; and
•Onboard and other revenues, which consist primarily of revenues from the sale of goods and/or services onboard our ships not included in passenger ticket prices, cancellation fees, sales of vacation protection insurance, pre- and post-cruise tours and fees for operating certain port facilities. Onboard and other revenues also include revenues we receive from independent third party concessionaires that pay us a percentage of their revenues in exchange for the right to provide selected goods and/or services onboard our ships, as well as revenues received for our bareboat charter, procurement and management related services we perform on behalf of our unconsolidated affiliates and third parties. 
Cruise Operating Expenses 
Our cruise operating expenses are comprised of the following:
•Commissions, transportation and other expenses, which consist of those costs directly associated with passenger ticket revenues, including travel agent commissions, air and other transportation expenses, port costs that vary with passenger head counts and related credit card fees;
•Onboard and other expenses, which consist of the direct costs associated with onboard and other revenues, including the costs of products sold onboard our ships, vacation protection insurance premiums, costs associated with pre- and post-cruise tours and related credit card fees, as well as the minimal costs associated with concession revenues, as the costs are mostly incurred by third-party concessionaires, and costs incurred for the procurement and management related services we perform on behalf of our unconsolidated affiliates;
•Payroll and related expenses, which consist of costs for shipboard personnel (costs associated with our shoreside personnel are included in Marketing, selling and administrative expenses);
•Food expenses, which include food costs for both guests and crew;
•Fuel expenses, which include fuel and related delivery, storage and emission consumable costs and the financial impact of fuel swap agreements; and
•Other operating expenses, which consist primarily of operating costs such as repairs and maintenance, port costs that do not vary with passenger head counts, vessel related insurance, entertainment and gains and/or losses related to the sale of our ships, if any.  
We do not allocate payroll and related expenses, food expenses, fuel expenses or other operating expenses to the expense categories attributable to passenger ticket revenues or onboard and other revenues since they are incurred to provide the total cruise vacation experience.
Selected Operational and Financial Metrics 
We utilize a variety of operational and financial metrics which are defined below to evaluate our performance and financial condition. As discussed in more detail herein, certain of these metrics are non-GAAP financial measures. These non-GAAP financial measures are provided along with the related GAAP financial measures as we believe they provide useful
34

information to investors as a supplement to our consolidated financial statements, which are prepared and presented in accordance with GAAP. The presentation of non-GAAP financial information is not intended to be considered in isolation or as a substitute for, or superior to, the financial information prepared and presented in accordance with GAAP.
Adjusted Loss per Share ("Adjusted EPS") represents Adjusted Net Loss attributable to Royal Caribbean Cruises Ltd. (as defined below) divided by weighted average shares outstanding or by diluted weighted average shares outstanding, as applicable. We believe that this non-GAAP measure is meaningful when assessing our performance on a comparative basis.
Adjusted Net Loss attributable to Royal Caribbean Cruises Ltd. represents net loss less net income attributable to noncontrolling interest excluding certain items that we believe adjusting for is meaningful when assessing our performance on a comparative basis. For the periods presented, these items included (i) gain or loss on the extinguishment of debt; (ii) the amortization of non-cash debt discount on our convertible notes; (iii) the estimated cash refund expected to be paid to Pullmantur guests and other expenses incurred as part of the Pullmantur reorganization; (iv) impairment and credit losses recognized as a result of the impact of COVID-19; (v) equity investment asset impairments; (vi) net insurance recoveries related to the collapse of the drydock structure at the Grand Bahama Shipyard involving Oasis of the Seas; (vii) restructuring charges incurred in relation to the reduction in our U.S. workforce and other initiative expenses; (viii) the change in the fair value in the Silversea Cruises contingent consideration and the amortization of the Silversea Cruises intangible assets resulting from our acquisition of a 66.7% interest in Silversea Cruises in 2018; (ix) the noncontrolling interest adjustment to exclude the impact of the contractual accretion requirements associated with the put option held by Heritage Cruise Holding Ltd.'s (previously known as Silversea Cruises Group Ltd.) noncontrolling interest in Silversea Cruises, which noncontrolling interest we acquired on July 9, 2020; (x) the net gain recognized in the first quarter of 2021 in relation to the sale of the Azamara brand; and (xi) currency translation losses recognized during the second quarter of 2020, in connection with the ships classified as assets held-for-sale that were previously chartered to Pullmantur.
Available Passenger Cruise Days (“APCD”) is our measurement of capacity and represents double occupancy per cabin multiplied by the number of cruise days for the period, which excludes canceled cruise days and cabins not available for sale. We use this measure to perform capacity and rate analysis to identify our main non-capacity drivers that cause our cruise revenue and expenses to vary.
Occupancy ("Load Factor"), in accordance with cruise vacation industry practice, is calculated by dividing Passenger Cruise Days (as defined below) by APCD. A percentage in excess of 100% indicates that three or more passengers occupied some cabins.
Passenger Cruise Days represent the number of passengers carried for the period multiplied by the number of days of their respective cruises.
Although discussed in previous periods, we do not disclose or reconcile in this report our Gross Yields, Net Yields, Gross Cruise Costs, Net Cruise Costs and Net Cruise Costs Excluding Fuel, as defined in our Annual Report on Form 10-K for the year ended December 31, 2019. Historically, we have utilized these financial metrics to measure relevant rate comparisons to other periods. However, our 2020 and 2021 reduction in capacity and revenues and the shift in the nature of our running costs, due to the impact of the COVID-19 pandemic on our operations, do not allow for a meaningful analysis and comparison of these metrics and as such these metrics have been excluded from this report.
Recent Developments: COVID-19
Return to Healthy Sailing
Our voluntary suspension of our global cruise operations commenced in March 2020 in response to the COVID-19 outbreak. We have restarted our global cruise operations in a phased manner, following the requirements and recommendations of regulatory agencies, with reduced guest occupancy, modified itineraries and enhanced health, safety and vaccination protocols.
By the end of September 2021, we operated 38 of our Global and Partner Brand ships, representing 63% of our fleet, and sailed over 500,000 passengers since we resumed operations. We expect to operate approximately 80% of our fleet and anticipate serving over 1 million passengers by December 31, 2021.
Uncertainties remain as to the specifics, timing and costs of administering and implementing our health and safety measures, some of which may be significant. Based on our assessment of these requirements and recommendations, the status of COVID-19 infection and/or vaccination rates in the U.S. or globally or for other reasons, we may determine it necessary to cancel or modify certain of our Global Brands’ cruise sailings. We believe the impact to our global bookings resulting from COVID-19 will continue to have a material negative impact on our results of operations and liquidity, which may be prolonged beyond containment of the disease and its variants.
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Continued Fleet Ramp-Up
We anticipate load factors on core itineraries to increase to 65-70% during the fourth quarter of 2021. We anticipate 6.9 million APCDs for the fourth quarter of 2021 with overall load factors of 60-65% and expect that all ships on core itineraries in the fourth quarter of 2021 will be cash flow accretive, even when including start-up costs. Core itineraries exclude sailings during our early resumption of operations of up to four weeks and also exclude specialized itineraries that were implemented during the COVID-19 period (e.g. Singapore, Cyprus). By the end of the year, we expect that 50 of our 61 Global Brand ships will have returned to service, representing almost 100% of core itinerary capacity and approximately 80% of worldwide capacity. Our remaining Global Brand ships are expected to return to service by the spring of 2022 and we expect to return to historical load factors in the third quarter of 2022. Mainland China is expected to resume in the spring and we have assumed lower load factors as this important long term market ramps-up.
On October 25, 2021, the U.S. Centers for Disease Control and Prevention (“CDC”) issued a temporary extension and modification of the Conditional Sail Order (“Conditional Order”) effective November 1, 2021 through January 15, 2022, and expressed its intention to transition to a voluntary program thereafter, in coordination with interested cruise ship operators. We plan to continue to operate under the Conditional Order where required, and to voluntarily comply with the Conditional Order for ships home ported or calling in Florida ports. Also on October 25, 2021, the U.S. President issued a proclamation effective on November 8, 2021 that rescinds all previous proclamations suspending entry into the U.S. of non-citizen non-immigrants. We expect these recent developments to support our return to service and anticipated load factors.
Update on Bookings
Booking volumes have improved significantly since the slowdown this summer due to the Delta variant (the "Delta Dip"). We attracted more bookings in the third quarter compared to the second quarter. September was particularly strong, with new bookings for 2022 sailings more than 60% higher than the monthly average during the second quarter of 2021.
Sailings for the full year 2022 are booked within historical ranges and at higher prices than 2019. Sailings further out are experiencing more normalized booking trends than sailings closer in. As such, load factors for sailings in the first quarter of 2022 are lower than historical levels; are improving but still below average in the second quarter of 2022; and are solidly within historical levels in the second half of 2022. Pricing remains strong throughout 2022, with or without future cruise credits ("FCC").
As of September 30, 2021, we had $2.8 billion in customer deposits, which represents an improvement by $0.4 billion from the June 30, 2021 balance despite the $300 million of revenue that was recognized during the quarter. Approximately 35% of the customer deposit balance is related to FCCs. This has dropped from 40% in the prior quarter, indicating net new demand. Customer deposits for cruises taking place in the second quarter of 2022 and onward are higher than customer deposits on the same three brands for cruises taking place in the same time horizon as of September 30, 2019.
Update on Recent Liquidity Actions and Ongoing Uses of Cash
As of September 30, 2021, we had liquidity of $4.1 billion, including $0.1 billion of undrawn revolving credit facility capacity, $3.3 billion in cash and cash equivalents, and a $0.7 billion commitment for a 364-day term loan facility available to draw on at any time prior to August 12, 2022. Our revolving credit facilities were mostly utilized through a combination of amounts drawn and letters of credit issued under the facilities as of September 30, 2021. We continue to prioritize and bolster liquidity while taking steps to improve our balance sheet and reduce its interest costs to be well positioned for recovery.
Reduced Operating Expenses
We took significant actions in early 2020 to reduce operating expenses during the suspension of our global cruise operations. In particular, we:
•    significantly reduced ship operating expenses, including crew payroll, food, fuel, insurance and port charges;
•    further reduced operating expenses as the Company’s ships are currently transitioning into various levels of layup with     several ships in the fleet transitioning into cold layup;
•    significantly reduced marketing and selling expenses;
•    reduced and furloughed our workforce, with approximately 23% of our US shoreside employee base being impacted in 2020; and
•    suspended travel for shoreside employees and instituted a hiring freeze across the organization.
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During our ramp up of operations, we have incurred and will continue to incur incremental spend related to bringing ships back to operating status, returning crew members to ships and implementing enhanced health and safety protocols. We also collected and will continue to collect deposits related to those sailings and for future cruises. The decision to bring ships back into service considers many variables, including deployment opportunities, commercial potential, cost of operations and cash flow.
Capital Expenditures
COVID-19 has impacted shipyard operations, which have and may continue to result in delays of our previously contracted ship deliveries. As of September 30, 2021, we anticipate that overall full year capital expenditures, based on our existing ships on order, will be approximately $2.1 billion for 2021. This amount does not include any ships on order by our Partner Brands. We took delivery of Odyssey of the Seas during the first quarter of 2021 and expect delivery of Silver Dawn during the fourth quarter of 2021. For 2022, we have two ship deliveries scheduled: Wonder of the Seas and Celebrity Beyond. Excluding newbuild deliveries, our capital expenditures for 2022 will depend on our schedule to return to service.
Debt Maturities, New Financings and Other Liquidity Actions
During the nine months ended September 30, 2021, the Company continued to take actions to further improve its liquidity position and manage cash flow. In particular, we:
•    extended the maturity date or termination date, as applicable, of certain of the advances and commitments held by consenting lenders under our $1.0 billion unsecured loan due April 2022 and our $1.55 billion unsecured revolving credit facility due October 2022, each by 18 months to October 2023 and April 2024, respectively;
•    extended the period during which we may draw upon our binding commitment for a $700.0 million 364-day term loan facility by one year, which is now available for draw at any time prior to August 12, 2022;
•    issued $1.5 billion of 5.5% senior unsecured notes due in 2028 for net proceeds of approximately $1.48 billion;
•issued $650.0 million of 4.25% senior unsecured notes due in 2026 for net proceeds of approximately $640.6 million, which were used to fully repay the Silversea Notes, in the amount of $619.8 million, and to pay the related call premiums, accrued interest and fees;
•issued $1.0 billion of 5.50% senior notes due in 2026 for net proceeds of approximately $986.0 million which were used to replenish our capital as a result of the redemption of a portion of the 11.50% senior secured notes due 2025 in the amount of $928.0 million, and to pay the related call premiums and accrued interest;
•amended the credit agreements for the unsecured financings of our first and second Evolution-class ships, increasing their maximum loan amounts by €175.6 million in the aggregate to finance ship design modifications that incorporate innovative sustainability features and additional premium cabins;
•issued 16.9 million shares of common stock for approximately $1.5 billion;
•amended $4.9 billion of our non-export-credit facilities and certain of our credit card processing agreements to extend the waiver of the financial covenants through and including the third quarter of 2022 and to implement modified covenants for the period starting fourth quarter of 2022 and extending through and including the fourth quarter of 2023; and
•    amended $6.3 billion of our export-credit facilities to extend the waiver of the financial covenants through and including the fourth quarter of 2022 and defer $1.15 billion of principal payments due between April 2021 and April 2022.
As of the date of this report, there are no scheduled debt maturities for the remainder of 2021, and scheduled debt maturities of $2.2 billion for 2022.
We continue to identify and evaluate further actions to enhance our liquidity and support our recovery. These include and are not limited to further reductions in capital expenditures, operating expenses and administrative costs and additional financings and refinancings.





Results of Operations
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Summary
Net Loss attributable to Royal Caribbean Cruises Ltd. and Adjusted Net Loss attributable to Royal Caribbean Cruises Ltd. for the third quarter of 2021 were $(1.4) billion and $(1.2) billion, or $(5.59) and $(4.91) per share on a diluted basis, respectively, reflecting the ramp up of our return to operations, and increased sales and marketing expenses during the quarter, compared to Net Loss attributable to Royal Caribbean Cruises Ltd. and Adjusted Net Loss attributable Royal Caribbean Cruises Ltd. of $(1.3) billion and $(1.2) billion, or $(6.29) and $(5.62) per share on a diluted basis, respectively, for the third quarter of 2020.
Net Loss attributable to Royal Caribbean Cruises Ltd. and Adjusted Net Loss attributable to Royal Caribbean Cruises Ltd. for the nine months ended September 30, 2021 were $(3.9) billion and $(3.6) billion, or $(15.56) and $(14.41) per share on a diluted basis, respectively, compared to Net Loss attributable to Royal Caribbean Cruises Ltd. and Adjusted Net Loss attributable Royal Caribbean Cruises Ltd. of $(4.4) billion and $(2.8) billion, or $(21.01) and $(13.26) per share on a diluted basis, respectively, for the nine months ended September 30, 2020.
Significant items for the quarter and nine months ended September 30, 2021 include:
•Total revenues, excluding the effect of changes in foreign currency exchange rates, increased $487.0 million and decreased $1,633.5 million, respectively, for the quarter and nine months ended September 30, 2021, as compared to the same periods in 2020. The increase in total revenues in the third quarter of 2021 reflects the ramp up in our return to operations compared to the third quarter of 2020, during which we continued to observe our global cruise suspension. For the nine months ended September 30, 2021, the decrease in total revenues reflects a 41.1% capacity decrease compared to the same period in 2020 reflecting the lay-up of the majority of our fleet during the first half of 2021, compared to the operation of the majority of our fleet up through our global suspension in March of 2020.
•The effect of changes in foreign currency exchange rates related to our passenger ticket and onboard and other revenue transactions, denominated in currencies other than the United States dollar, resulted in an increase in total revenues of $3.6 million and $8.7 million for the quarter and nine months ended September 30, 2021, respectively, compared to the same periods in 2020.
•Total cruise operating expenses, excluding the effect of changes in foreign currency exchange rates, increased $503.3 million and decreased $987.6 million for the quarter and nine months ended September 30, 2021, respectively, as compared to the same periods in 2020. The increase in total cruise operating expenses in the third quarter of 2021 reflects the ramp up of our operations compared to our suspension of cruise operations in 2020. The decrease during the nine months ended September 30, 2021 compared to the same period in 2020 reflects the capacity decrease mentioned above.
•The effect of changes in foreign currency exchange rates related to our cruise operating expenses, denominated in currencies other than the U.S. dollar, resulted in an increase in total operating expenses of $1.8 million and $9.7 million, respectively, for the quarter and nine months ended September 30, 2021, compared to the same periods in 2020.
•Our consolidated results of operations include Silversea Cruises’ results of operations on a three-month reporting lag for April, May and June 2021, for the quarter ended September 30, 2021, and from October 1, 2020 through June 30, 2021 for the nine months ended September 30, 2021.
•In March 2021, we extended the maturity date or termination date of certain of the advances and commitments, as applicable, held by consenting lenders under our $1.0 billion unsecured loan due April 2022 and our $1.55 billion unsecured revolving credit facility due October 2022, by 18 months to October 2023 and April 2024, respectively.
•In March 2021, we extended our binding commitment for a $700.0 million 364-day term loan facility by one year which is currently available for draw at any time prior to August 12, 2022.
•In March 2021, we issued $1.5 billion of senior unsecured notes due in 2028. Interest on the senior notes accrues at 5.5% and is payable semi-annually.
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•In March 2021, we issued 16.9 million shares of common stock, par value $0.01 per share, at an average price of $91.00 per share for net proceeds of $1.5 billion.
•In March 2021, we amended $4.9 million of our non-export-credit facilities and certain of our credit card processing agreements to extend the waiver of the financial covenants through and including the third quarter of 2022.
•In March 2021, we amended $6.3 million of our export-credit facilities to extend the waiver of the financial covenants through and including the third quarter of 2022, and subsequently in the third quarter of 2021, we entered into a letter agreement to extend the waiver period to the end of the fourth quarter of 2022; including the deferral of up to $1.15 billion of principal payments due between April 2021 and April 2022.
•In March 2021, we entered into amendments to our drawn and undrawn ECA facilities to provide for the issuance of guarantees in satisfaction of existing obligations under these facilities.
•In March 2021, we took delivery of Odyssey of the Seas.
•In June 2021, we issued $650.0 million of senior unsecured notes due in 2026 for net proceeds of approximately $640.6 million, which were used to fully repay the Silversea Notes in the amount of $619.8 million and to pay the related call premiums, accrued interest and fees. Interests on the Silversea Notes accrued at 7.25% per annum and was payable semi-annually.
•In June 2021, Hapag-Lloyd took delivery of Hanseatic Spirit.
•In August 2021, we issued $1.0 billion of 5.50% senior unsecured notes due in 2026 for net proceeds of approximately $986.0 million, which we used to replenish capital as a result of the redemption of a portion of the 11.50% senior secured notes due 2025, in the amount of $928.0 million plus call premiums, accrued interest, and fees.

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Operating results for the quarter and nine months ended September 30, 2021 compared to the same periods in 2020 are shown in the following tables (in thousands, except per share data):
  Quarter Ended September 30,
  2021 2020
    % of Total
Revenues 		  % of Total
Revenues
Passenger ticket revenues $ 280,153  61.3  % $ 3,204  (9.5) %
Onboard and other revenues 176,805  38.7  % (36,892) 109.5  %
Total revenues 456,958  100.0  % (33,688) 100.0  %
Cruise operating expenses:        
Commissions, transportation and other 64,780  14.2  % (3,321) 9.9  %
Onboard and other 42,703  9.3  % 6,036  (17.9) %
Payroll and related 265,974  58.2  % 119,213  (353.9) %
Food 48,950  10.7  % 5,640  (16.7) %
Fuel 118,127  25.9  % 53,815  (159.7) %
Other operating 273,157  59.8  % 127,226  (377.7) %
Total cruise operating expenses 813,691  178.1  % 308,609  (916.1) %
Marketing, selling and administrative expenses 323,422  70.8  % 246,779  (732.5) %
Depreciation and amortization expenses 325,907  71.3  % 317,139  (941.4) %
Impairment and credit losses (238) (0.1) % 89,899  (266.9) %
Operating Loss (1,005,824) (220.1) % (996,114) 2,956.9  %
Other (expense) income:        
Interest income 3,786  0.8  % 5,017  (14.9) %
Interest expense, net of interest capitalized (430,661) (94.2) % (259,349) 769.9  %
Equity investment loss (29,085) (6.4) % (78,013) 231.6  %
Other income (expense) 37,230  8.1  % (10,853) 32.2  %
  (418,730) (91.6) % (343,198) 1,018.8  %
Net Loss (1,424,554) (311.7) % (1,339,312) 3,975.6  %
Less: Net Income attributable to noncontrolling interest —  —  % 7,444  (22.1) %
Net Loss attributable to Royal Caribbean Cruises Ltd. $ (1,424,554) (311.7) % $ (1,346,756) 3,997.7  %
Diluted Loss per Share $ (5.59)   $ (6.29)  

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Nine Months Ended September 30,
2021 2020
% of Total
Revenues 		% of Total
Revenues
Passenger ticket revenues $ 323,782  58.9  % $ 1,487,077  68.4  %
Onboard and other revenues 226,104  41.1  % 687,590  31.6  %
Total revenues 549,886  100.0  % 2,174,667  100.0  %
Cruise operating expenses:
Commissions, transportation and other 72,917  13.3  % 342,632  15.8  %
Onboard and other 55,782  10.1  % 151,333  7.0  %
Payroll and related 530,250  96.4  % 693,480  31.9  %
Food 74,618  13.6  % 154,439  7.1  %
Fuel 219,058  39.8  % 327,275  15.0  %
Other operating 569,383  103.5  % 830,689  38.2  %
Total cruise operating expenses 1,522,008  276.8  % 2,499,848  115.0  %
Marketing, selling and administrative expenses 867,021  157.7  % 944,087  43.4  %
Depreciation and amortization expenses 959,512  174.5  % 961,226  44.2  %
Impairment and credit losses 39,934  7.3  % 1,354,514  62.3  %
Operating Loss (2,838,589) (516.2) % (3,585,008) (164.9) %
Other income (expense):
Interest income 13,317  2.4  % 15,757  0.7  %
Interest expense, net of interest capitalized (1,007,986) (183.3) % (571,149) (26.3) %
Equity investment loss (137,044) (24.9) % (140,258) (6.4) %
Other income (expense) 66,771  12.1  % (127,537) (5.9) %
(1,064,942) (193.7) % (823,187) (37.9) %
Net Loss $ (3,903,531) (709.9) % $ (4,408,195) (202.7) %
Less: Net Income attributable to noncontrolling interest —  —  % 22,332  1.0  %
Net Loss attributable to Royal Caribbean Cruises Ltd. $ (3,903,531) (709.9) % $ (4,430,527) (203.7) %
Diluted Loss per Share $ (15.56) $ (21.01)









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Adjusted Net Loss attributable to Royal Caribbean Cruises Ltd. and Adjusted Loss per Share attributable to Royal Caribbean Cruises Ltd. were calculated as follows (in thousands, except per share data):
  Quarter Ended September 30, Nine Months Ended September 30,
  2021 2020 2021 2020
Net Loss attributable to Royal Caribbean Cruises Ltd. $ (1,424,554) $ (1,346,756) $ (3,903,531) $ (4,430,527)
Adjusted Net Loss attributable to Royal Caribbean Cruises Ltd. (1,249,701) (1,204,350) (3,615,102) (2,797,335)
Net Adjustments to Net Loss attributable to Royal Caribbean Cruises Ltd. $ 174,853  $ 142,406  $ 288,429  $ 1,633,192 
Adjustments to Net Loss attributable to Royal Caribbean Cruises Ltd.:
Loss on extinguishment of debt (1)
$ 141,915  $ 774  $ 138,759  41,109 
Convertible debt amortization of debt discount (2)
26,073  17,750  78,219  21,934 
Pullmantur reorganization settlement (3)
5,242  —  10,242  21,637 
Impairment and credit losses (4)
(237) 89,899  39,934  1,354,514 
Equity investment impairments (5)
—  —  26,042  39,735 
Oasis of the Seas incident, Grand Bahama's drydock write-off and other incidental expenses (6)
—  —  (6,584) (1,938)
Restructuring charges and other initiatives expense (7)
74  5,720  1,721  50,745 
Change in the fair value of contingent consideration and amortization of Silversea Cruises intangible assets related to Silversea Cruises acquisition (8)
1,623  2,548  4,869  (35,919)
Noncontrolling interest adjustment (9)
—  25,715  —  72,331 
Net gain related to the sale of the Azamara brand (10)
163  —  (4,773) — 
Currency translation adjustment losses (11)
—  —  —  69,044 
Net Adjustments to Net Loss attributable to Royal Caribbean Cruises Ltd. $ 174,853  $ 142,406  $ 288,429  $ 1,633,192 
Basic:        
   Loss per Share $ (5.59) $ (6.29) $ (15.56) $ (21.01)
   Adjusted Loss per Share $ (4.91) $ (5.62) $ (14.41) $ (13.26)
Diluted:
   Loss per Share $ (5.59) $ (6.29) $ (15.56) $ (21.01)
   Adjusted Loss per Share $ (4.91) $ (5.62) $ (14.41) $ (13.26)
Weighted-Average Shares Outstanding:
Basic 254,713  214,163  250,808  210,894 
Diluted 254,713  214,163  250,808  210,894 
(1)For the three months ended September 30, 2021, represents the net loss on the partial repayment of the 11.50% senior secured notes due 2025 in the amount of $928.0 million. For the nine months ended September 30, 2021, represents the net loss on the partial repayment of the 11.50% senior secured notes due 2025, the second quarter 2021 net gain on the full repayment of the Silversea Notes and the first quarter 2021 loss on the partial repayment of the $1.55 billion unsecured revolving credit facility. For the nine months ended September 30, 2020, represents a loss on the extinguishment of the $2.2 billion Senior Secured Term Loan.
(2)Represents the amortization of non-cash debt discount on our convertible notes.
(3)Represents estimated cash refunds expected to be paid to Pullmantur guests and other expenses incurred as part of the Pullmantur reorganization.
(4)In 2021 and 2020, represents asset impairment and credit losses as a result of the impact of COVID-19. In 2021, amounts are net of the recovery of credit losses recognized in 2020.
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(5)Represent equity investment asset impairments, primarily for our investments in TUI Cruises GmbH in 2021 and Grand Bahama Shipyard in 2020, as a result of the impact of COVID-19.
(6)Amounts include net insurance recoveries related to the collapse of the drydock structure at the Grand Bahama Shipyard involving Oasis of the Seas.
(7)Represents primarily restructuring charges incurred in relation to the reduction in our U.S. workforce and other initiatives expenses. Refer to Note 13. Restructuring Charges to our consolidated financial statements under Item 1. Financial Statements for further information on the restructuring activities.
(8)Related to the Silversea Cruises acquisition.
(9)Adjustment made to exclude the impact of the contractual accretion requirements associated with the put option held by Heritage Cruise Holding Ltd.'s (previously known as Silversea Cruises Group Ltd.) noncontrolling interest, which noncontrolling interest we acquired on July 9, 2020.
(10)Represents the net gain recognized in the first quarter of 2021 in relation to the sale of the Azamara brand.
(11)Represents currency translation losses recognized during the second quarter of 2020, in connection with the ships classified as assets held-for-sale that were previously chartered to Pullmantur.

Selected statistical information is shown in the following table (1):
Quarter Ended September 30, Nine Months Ended September 30,
2021 2020 2021 2020
Passengers Carried 251,744  1,230  327,226  1,261,075 
Passenger Cruise Days 1,496,609  5,424  1,771,087  8,653,799 
APCD 4,112,256  5,424  4,967,078  8,437,003 
Occupancy 36.4  % 100.0  % 35.7  % 102.6  %
(1)Due to the three-month reporting lag, we include Silversea Cruises' results of operations from April 1 through June 30 for the quarters ended September 30, 2021 and 2020 and from October 1 through June 30 for the nine months ended September 30, 2021 and 2020. Refer to Note 1. General to our consolidated financial statements for more information on the three-month reporting lag.

















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2021 Outlook
The Company’s operations are still impacted by the magnitude, duration, speed and geographic reach of COVID-19 and its related variants. As a consequence, we cannot reasonably estimate the impact of COVID-19 on our business, financial condition or near or longer-term financial or operational results. The adverse impact of the COVID-19 pandemic on our revenues, consolidated results of operations, cash flows and financial condition has been and will continue to be material in 2021. We expect to incur a net loss on both a U.S. GAAP and adjusted basis for our fourth quarter and our 2021 fiscal year, the extent of which will depend on many factors including the timing and extent of our return to service. See Recent Developments: COVID-19 – Continued Fleet Ramp-Up and Update on Bookings for further indications on our resumption of operations and the booking environment.


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Quarter Ended September 30, 2021 Compared to Quarter Ended September 30, 2020
In this section, references to 2021 refer to the quarter ended September 30, 2021 and references to 2020 refer to the quarter ended September 30, 2020.
Revenues
Total revenues for 2021 increased $490.6 million, or 1,456.4%, to $457.0 million from $(33.7) million in 2020.
Passenger ticket revenues comprised 61.3% of our 2021 total revenues. Passenger ticket revenues for 2021 increased by $276.9 million to $280.2 million from $3.2 million in 2020. The increase in Passenger ticket revenues in the third quarter of 2021 reflects the expansion of our global return to service compared to our continued suspension of cruise operations in the third quarter of 2020. Favorable movements in foreign currency exchange rates related to our revenue transactions denominated in currencies other than the United States dollar increased Passenger ticket revenues by $3.0 million.
The remaining 38.7% of 2021 total revenues was comprised of Onboard and other revenues, which increased $213.7 million, or 579.3%, to $176.8 million in 2021 from $(36.9) million in 2020. The increase in Onboard and other revenues was due to the ramp up of our return to service noted above. Onboard and other revenues for the quarter ended September 30, 2020 includes a charge of $67.9 million to correct cancellation revenue, for certain immaterial bookings, that was incorrectly recognized during the six months ended June 30, 2020. The charge is offsetting cancellation and other revenue recognized during the quarter ended September 30, 2020 and is considered immaterial to our financial statements.
Onboard and other revenues included concession revenues of $22.9 million in 2021 and $0.4 million in 2020.
Cruise Operating Expenses
Total Cruise operating expenses for 2021 increased $505.1 million, or 163.7%, to $813.7 million from $308.6 million in 2020. The increase was primarily due to:
•a $145.9 million increase in Other operating expenses primarily due to increased hotel and vessel maintenance and consumables;
•a $146.8 million increase in Payroll and related;
•a $68.1 million increase in Commissions, transportation and other expenses;
•a $64.3 million increase in Fuel expenses;
•a $43.3 million increase in Food expenses; and
•a $36.7 million increase in Onboard and other expenses.
Marketing, Selling and Administrative Expenses
Marketing, selling and administrative expenses for 2021 increased $76.6 million, or 31.1%, to $323.4 million from $246.8 million in 2020. The increase in 2021 was primarily due to increases in marketing and sales activities related to our return to service.
Depreciation and Amortization Expenses 
Depreciation and amortization expenses for 2021 increased by $8.8 million, or 2.8%, to $325.9 million from $317.1 million in 2020 primarily due to the addition of Odyssey of the Seas to our fleet during the first quarter of 2021.
Impairment and Credit Losses
Impairment and credit losses for 2021 decreased by $90.1 million compared to impairment losses of $83.9 million recognized during the quarter ended September 30, 2020 due to the impact of COVID-19 on our operations and cash flows primarily related to our Property and equipment, net. Additionally, credit losses of $6.0 million were recognized during the third quarter of 2020 related to our notes receivable.




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Other Income (Expense)
Interest expense, net of interest capitalized for 2021 increased $171.3 million, or 66.1%, to $430.7 million from $259.3 million in 2020. The increase was primarily due to a debt extinguishment loss of $141.9 million recognized in the third quarter of 2021 associated with the partial repayment of the 11.50% senior secured notes due 2025. Refer to Note 7. Debt to our consolidated financial statements for further information. Additionally, a higher average cost of debt compared to 2020 contributed to the 2021 increase in Interest expense, net of interest capitalized.
Equity investment loss in 2021 decreased by $48.9 million, to $29.1 million from $78.0 million in 2020 primarily due to a reduction in losses for TUI Cruises, one of our equity investments, during the third quarter of 2021 compared to 2020.
Other income (expense) was $37.2 million in 2021, compared to $(10.9) million in 2020. The $48.1 million increase in income was primarily due to a $22.0 million tax benefit recognized in 2021, a $12.4 million decrease in expense compared to 2020 related to the change in fair value of fuel swap derivative instruments with no hedge accounting, and a decrease of $8.0 million in foreign exchange losses from the remeasurement of monetary assets and liabilities denominated in foreign currency compared to 2020.
Other Comprehensive (Loss) Income
Other comprehensive loss in 2021 was $11.9 million compared to Other comprehensive income of $82.1 million in 2020. The decrease in income of $94.0 million was primarily due to our recognition of a Loss on cash flow derivative hedges of $13.3 million in 2021 compared to a Gain on cash flow derivative hedges of $66.1 million in 2020, primarily due to a decrease in the fair value of our foreign currency forwards in 2021 compared to an increase in 2020.
Nine Months Ended September 30, 2021 Compared to Nine Months Ended September 30, 2020
In this section, references to 2021 refer to the nine months ended September 30, 2021 and references to 2020 refer to the nine months ended September 30, 2020.
Revenues
Total revenues for 2021 decreased $1.6 billion, or 74.7%, to $549.9 million from $2.2 billion in 2020.
Passenger ticket revenues comprised 58.9% of our 2021 total revenues. Passenger ticket revenues for 2021 decreased by $1.2 billion, or 78.2%, to $0.3 billion in 2021 from $1.5 billion in 2020. The decrease in Passenger ticket revenues was due to a 41.1% decrease in capacity driven by the lay-up of the majority of our fleet during the first half of 2021 compared to the operation of the majority of our fleet up through our global suspension in March of 2020. Our results of operations for the nine months ended September 30, 2020 include Silversea Cruises' fourth quarter 2019 and first and second quarter 2020 sailings, reported on a one quarter lag. Favorable movements in foreign currency exchange rates related to our revenue transactions denominated in currencies other than the United States dollar increased Passenger ticket revenues by $4.2 million
The remaining 41.1% of 2021 total revenues was comprised of Onboard and other revenues, which decreased $461.5 million, or 67.1%, to $226.1 million in 2021 from $687.6 million in 2020. The decrease in Onboard and other revenues was primarily due to the decrease in capacity noted above and offset by the favorable effect of changes in foreign currency exchange rates related to our onboard and other revenues denominated in currencies other than the United States dollar of $4.5 million.
Onboard and other revenues for the nine months ended September 30, 2020 also includes a charge of $67.9 million recorded in the quarter ended September 30, 2020 to correct cancellation revenue, for certain immaterial bookings, which was incorrectly recognized during the six months ended June 30, 2020. The charge is considered immaterial to our financial statements.
Onboard and other revenues included concession revenue of $25.3 million in 2021 and $75.1 million in 2020.
Cruise Operating Expenses
Total cruise operating expenses for 2021 decreased $1.0 billion, or 39.1%, to $1.5 billion from $2.5 billion in 2020. The decrease was primarily due to:
•a $269.7 million decrease in Commissions, transportation and other expenses;
•a $261.3 million decrease in Other operating expenses;
•a $163.2 million decrease in Payroll and related expense;
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•a $108.2 million decrease in Fuel expenses;
•a $95.6 million decrease in Onboard and other expenses;
•a $79.8 million decrease in Food expenses; and
•the unfavorable effect of changes in foreign currency exchange rates related to our expense transactions denominated in currencies other than the United States dollar of $9.7 million.
Marketing, Selling and Administrative Expenses
Marketing, selling and administrative expenses decreased $77.1 million, or 8.2%, to $867.0 million from $944.1 million in 2020. The decrease was due to the reduction and deferral of general and administrative and global sales and marketing activities primarily during the first half of 2021 due to the impact of COVID-19 on our operations and a reduction in payroll and benefits as a result of our April 2020 reduction in workforce.
Depreciation and Amortization Expenses
Depreciation and amortization expenses for 2021 remained in line with 2020 with a decrease of $1.7 million, or 0.2%.
Impairment and Credit Losses
Impairment and credit losses for 2021 decreased by $1.3 billion compared to charges recorded during the nine months ended September 30, 2020 due to the impact of COVID-19 on our operations and cash flows, which impacted our long-lived assets related to goodwill, intangibles, vessels and operating lease right-of-use asset, and resulted in credit losses.
Other Income (Expense)
Interest expense, net of interest capitalized for 2021 increased $436.8 million, or 76.5%, to $1.0 billion from $571.1 million in 2020. The increase was primarily due to a debt extinguishment loss of $141.9 million recognized in the third quarter of 2021 associated with the partial repayment of the 11.50% senior secured notes due 2025. Refer to Note 7. Debt to our consolidated financial statements for further information. Additionally, a higher average debt level compared to 2020 related to new debt issuances in 2020 and 2021 coupled with a higher average cost of debt contributed to the 2021 increase in Interest expense, net of interest capitalized.
Equity investment loss decreased $3.2 million, or 2.3%, to a loss of $137.0 million in 2021 from a loss of $140.3 million in 2020 mainly as a result of a 2021 $26.0 million impairment charge of our investee's long-lived assets, compared to a $39.7 million impairment charge of equity investments in 2020 primarily for our investment in Grand Bahama Shipyard.
Other income (expense) was $66.8 million in 2021, compared to $(127.5) million in 2020. The $194.3 million change was primarily due to a $127.4 million year-over-year increase in the fair value of fuel swaps with no hedge accounting. Additionally, we recorded a deferred currency translation adjustment loss of $69.0 million in the quarter ended June 30, 2020 related to the 2016 sale of our majority interest in the Pullmantur brand. We recognized the deferred currency translation loss as we no longer have significant involvement in Pullmantur's operations. In June 2020, we terminated the agreements chartering our ships to the Pullmantur brand as a result of its reorganization filing under Spanish law. We also recognized $20.0 million of expense during the second quarter of 2020, approximating the estimated total cash refund expected to be paid to Pullmantur guests and other expenses incurred as part of a settlement agreement with our joint venture partner as part of the brand's reorganization. The increases in Other income were partially offset by income reported in 2020 of $45.1 million for the change in contingent consideration payable to Heritage in 2020, which did not recur in 2021.
Other Comprehensive Income (Loss)
Other comprehensive income in 2021 was $63.5 million compared to Other comprehensive loss of $71.4 million in 2020. The change of $134.9 million, or 189.0%, was primarily due to a Gain on cash flow derivative hedges in 2021 of $48.5 million, compared to a Loss on cash flow derivative hedges of $110.1 million in 2020 primarily due to an increase in the fair value of our fuel swaps in 2021 compared to a decrease in 2020.
Future Application of Accounting Standards
Refer to Note 2. Summary of Significant Accounting Policies to our consolidated financial statements for further information on Recent Accounting Pronouncements.
Liquidity and Capital Resources
Sources and Uses of Cash
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Net cash used in operating activities decreased $1.2 billion to $1.7 billion for the nine months ended September 30, 2021 compared to Net cash used in operating activities of $2.9 billion for the same period in 2020. Our gradual resumption of operations in 2021 and our announcement for the resumption of future operations has generated increased guest ticket collections, resulting in an increase of customer deposits of $1.0 billion during the nine months ended September 30, 2021, compared to a decrease of customer deposits of $(1.6) billion during the nine months ended September 30, 2020, while our global operations were suspended. The increase in customer deposits was offset by increased service expenses for certain ships in our fleet during the nine months ended September 30, 2021, reflecting our resumption of cruise operations globally and preparations for our announced sailings in the near term.
Net cash used in investing activities decreased $0.2 billion to $1.6 billion for the nine months ended September 30, 2021, compared to $1.8 billion for the same period in 2020. The decrease was primarily attributable to an increase in proceeds from the sale of property and equipment and other assets of $175.4 million during the nine months ended September 30, 2021 compared to 2020 and a decrease in cash paid on settlement of derivative financial instruments of $85.0 million, partially offset by an increase in capital expenditures of $81.0 million during the nine months ended September 30, 2021 compared to the same period in 2020.
Net cash provided by financing activities were $2.8 billion for the nine months ended September 30, 2021, compared to $7.5 billion for the same period in 2020. The decrease of $4.6 billion was primarily attributable to higher debt proceeds and issuance of commercial paper notes of $15.3 billion, during the nine months ended September 30, 2020, compared to the same period in 2021, offset by higher debt and commercial paper repayments of $8.6 billion during the nine months ended September 30, 2020, compared to the same period in 2021. Additionally during the nine months ended September 30, 2021, we received $1.6 billion in proceeds from common stock issuances compared to none during the same period in 2020.
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Future Capital Commitments
Capital Expenditures
COVID-19 has impacted shipyard operations, which has resulted and may continue to result in delays of our previously contracted ship deliveries. As of September 30, 2021, the dates that the ships on order by our Global and Partner Brands are expected to be delivered, subject to change in the event of construction delays, and their approximate berths are as follows:
Ship Shipyard Expected Delivery Date Approximate
Berths
Royal Caribbean International —    
Oasis-class:    
Wonder of the Seas Chantiers de l'Atlantique 1st Quarter 2022 5,700
Unnamed Chantiers de l'Atlantique 2nd Quarter 2024 5,700
Icon-class:
Icon of the Seas Meyer Turku Oy 3rd Quarter 2023 5,600
Unnamed Meyer Turku Oy 2nd Quarter 2025 5,600
Unnamed Meyer Turku Oy 2nd Quarter 2026 5,600
Celebrity Cruises —
Edge-class:
Celebrity Beyond Chantiers de l'Atlantique 2nd Quarter 2022 3,250
Unnamed Chantiers de l'Atlantique 4th Quarter 2023 3,250
Silversea Cruises
Muse-Class:
Silver Dawn Fincantieri 4th Quarter 2021 600
Evolution Class:
Unnamed Meyer Werft 2nd Quarter 2023 730
Unnamed Meyer Werft 2nd Quarter 2024 730
TUI Cruises (50% joint venture)
Mein Schiff 7 Meyer Turku Oy 2nd Quarter 2024 2,900
Unnamed Fincantieri 4th Quarter 2024 4,100
Unnamed Fincantieri 2nd Quarter 2026 4,100
Total Berths 47,860

In April 2019, we entered into an agreement with Chantiers de l’Atlantique to build the fifth Edge-class ship for Celebrity Cruises. The ship is expected to have an aggregate capacity of approximately 3,250 berths and is expected to enter service in the fourth quarter of 2025. The order with Chantiers de l’Atlantique is contingent upon completion of conditions precedent and financing.
In September 2021, we amended the credit agreements for the first and second Evolution-class ships to increase their maximum loan amounts by €175.6 million on an aggregate basis, or approximately $203.5 million based on the exchange rate at September 30, 2021. The increase in the loan amounts will finance ship design modifications that incorporate innovative sustainability features and additional premium cabins, increasing the capacity for each ship to 730 berths. At our election, interest on the incremental portion of Evolution 1 and Evolution 2 will accrue either (1) at a fixed rate of 4.34% and 4.38%, respectively (inclusive of the applicable margin) or (2) at a floating rate equal to LIBOR plus 0.99% and 1.03%, respectively.
Our future capital commitments consist primarily of new ship orders. As of September 30, 2021, the aggregate cost of our ships on order presented in the table above, excluding any ships on order by our Partner Brands, was $12.8 billion, of which we had deposited $784.8 million. Approximately 62.5% of the aggregate cost was exposed to fluctuations in the Euro exchange rate at September 30, 2021.
Decreased demand for cruising as a result of concerns regarding COVID-19 has had, and is expected to continue to have, a material impact on our cash flows, liquidity and financial position. In order to preserve liquidity throughout the COVID-19 pandemic, we deferred a significant portion of our planned 2020 and 2021 capital expenditures. As of September 30, 2021, we anticipate overall full year capital expenditures, based on our existing ships on order, will be approximately $2.1 billion for 2021. This amount does not include any ships on order by our Partner Brands.  
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Contractual Obligations
As of September 30, 2021, our contractual obligations were as follows (in thousands):
  Payments due by period
    Less than 1-3 3-5 More than
  Total 1 year years years 5 years
Operating Activities:          
Operating lease obligations(1) $ 1,297,500  $ 31,647  $ 200,537  $ 164,846  $ 900,470 
Interest on debt(2) 3,670,097  935,853  1,361,541  736,777  635,926 
Other(3) 432,787  123,112  96,011  58,107  155,557 
Investing Activities: 0        
Ship purchase obligations(4) 10,282,754  2,682,967  4,796,104  2,803,683  — 
Financing Activities: 0        
Debt obligations(5) 20,642,096  924,453  10,140,513  4,983,076  4,594,054 
Finance lease obligations(6) 197,407  32,291  27,808  8,187  129,121 
Other(7) 20,128  9,435  10,693  —  — 
Total $ 36,542,769  $ 4,739,758  $ 16,633,207  $ 8,754,676  $ 6,415,128 
(1)     We are obligated under noncancelable operating leases primarily for preferred berthing arrangements, real estate and shipboard equipment. Amounts represent contractual obligations with initial terms in excess of one year.
(2)      Long-term debt obligations mature at various dates through fiscal year 2033 and bear interest at fixed and variable rates. Interest on variable-rate debt is calculated based on forecasted debt balances, including the impact of interest rate swap agreements using the applicable rate at September 30, 2021. Debt denominated in other currencies is calculated based on the applicable exchange rate at September 30, 2021.
(3)    Amounts primarily represent future commitments with remaining terms in excess of one year to pay for our usage of certain port facilities, marine consumables, services and maintenance contracts.
(4)    Amounts are based on contractual installment and delivery dates for our ships on order. Included in these figures are $8.2 billion in final contractual installments, which have committed financing. COVID-19 has impacted shipyard operations, which has resulted and may continue to result in delays of our previously contracted ship deliveries. Amounts do not include potential obligations which remain subject to cancellation at our sole discretion or any agreements entered for ships on order that remain contingent upon completion of conditions precedent. Additionally, amounts do not include activity related to Silversea Cruises, including ships placed on order, if any, during the three-month reporting lag period.

(5)    Amounts represent debt obligations with initial terms in excess of one year. Debt denominated in other currencies is calculated based on the applicable exchange rate at September 30, 2021. In addition, debt obligations presented above are net of debt issuance costs of $359.1 million as of September 30, 2021.
(6)    Amounts represent finance lease obligations with initial terms in excess of one year, net of imputed interest.
(7)    Amounts represent fees payable to sovereign guarantors in connection with certain of our export credit debt facilities and facility fees on our revolving credit facilities.
Please refer to Funding Needs and Sources for discussion on the planned funding of the above contractual obligations.
As a normal part of our business, depending on market conditions, pricing and our overall growth strategy, we continuously consider opportunities to enter into contracts for the building of additional ships. We may also consider the sale of ships or the purchase of existing ships. We continuously consider potential acquisitions and strategic alliances. If any of these were to occur, they would be financed through the incurrence of additional indebtedness, the issuance of additional shares of equity securities or through cash flows from operations.
Off-Balance Sheet Arrangements
TUI Cruises has entered into various ship construction and credit agreements that include certain restrictions on each of our and TUI AG’s ability to reduce our current ownership interest in TUI Cruises below 37.55% through May 2033.
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Some of the contracts that we enter into include indemnification provisions that obligate us to make payments to the counterparty if certain events occur. These contingencies generally relate to changes in taxes, increased lender capital costs and other similar costs. The indemnification clauses are often standard contractual terms and are entered into in the normal course of business.  There are no stated or notional amounts included in the indemnification clauses and we are not able to estimate the maximum potential amount of future payments, if any, under these indemnification clauses. We have not been required to make any payments under such indemnification clauses in the past and, under current circumstances, we do not believe an indemnification obligation is probable.
In June of 2021, we exercised our option under our operating lease with SMBC Leasing and Finance, Inc (the "Lessor") to purchase Terminal A at PortMiami in July 2021 for the pre-agreed purchase price of $220.0 million. Upon purchase of the terminal lease in July 2021, the underlying asset was recorded as a leasehold improvement within Property and equipment, net. Our July 2021 purchase of the Port of Miami terminal eliminated the residual value guarantee and a requirement under the lease to post $181.1 million of cash collateral on or before July 18, 2021.
On February 25, 2021, S&P Global downgraded our senior unsecured rating from B+ to B, which had no financial impact, and downgraded our $3.32 billion Secured Notes and Silversea Notes, which were fully repaid in June 2021 with a portion of the proceeds from the $650 million June Unsecured Notes, from BB to BB-. This downgrade had no impact on the terms of the notes.
Certain of our surety agreements with third party providers for the benefit of certain agencies and associations that provide travel related bonds, allow the sureties to request collateral. We also have agreements with our credit card processors relating to customer deposits received by us for future voyages. These agreements allow the credit card processors to require us, under certain circumstances, including breach of the financial covenants, the existence of other material adverse changes, excessive chargebacks, and other triggering events, to maintain a reserve that can be satisfied by posting collateral. As of September 30, 2021, we have posted letters of credit as collateral with our sureties and credit card processors under our revolving credit facilities in the amount of $162.3 million.
Executed amendments are in place for the majority of our credit card processors, waiving reserve requirements tied to breach of our financial covenants through at least September 30, 2022, with modified covenants thereafter, and as such, we do not anticipate any incremental collateral requirements for the processors covered by these waivers in the next 12 months. We have a reserve with a processor where the agreement was amended in the first quarter of 2021, such that proceeds are held in reserve until the sailing takes place or the funds are refunded to the customer. The maximum projected exposure with the processor, including amounts currently withheld and reported in Trade and other receivables, is approximately $237.7 million. The amount and timing are dependent on future factors that are uncertain, such as the pace of resumption of our cruise operations, the volume of future deposits and whether we transfer our business to other processors. If we require additional waivers on the credit card processing agreements and are not able to obtain them, this could lead to the termination of these agreements or the trigger of reserve requirements.
As of September 30, 2021, other than the items described above, we are not party to any other off-balance sheet arrangements, including guarantee contracts, retained or contingent interest, certain derivative instruments and variable interest entities, that either have, or are reasonably likely to have, a current or future material effect on our financial position.
Funding Needs and Sources
Historically, we relied on a combination of cash flows provided by operations, drawdowns under our available credit facilities, the incurrence of additional debt and/or the refinancing of our existing debt and the issuance of additional shares of equity securities to fund our obligations. The impact of COVID-19 has resulted in our voluntary suspension of global cruise operations from March 2020 up to our recent gradual resumption of operations. The suspension of operations strained our sources of cash flow and liquidity, causing us to take actions resulting in reductions in our operating expenses, reductions in our capital expenses and new financings and other liquidity actions.
The Company continues to identify and evaluate further actions to improve its liquidity. These include and are not limited to: further reductions in capital expenditures, operating expenses and administrative costs and additional financings. See further discussion on these liquidity actions at Recent Developments - COVID-19.
We have significant contractual obligations of which our debt service obligations and the capital expenditures associated with our ship purchases represent our largest funding needs. As of September 30, 2021, we had 10.3 billion of committed financing for final delivery installments on our ships on order.
As of September 30, 2021, we had $4.7 billion in contractual obligations due through September 30, 2022, of which approximately $0.9 billion relates to debt maturities, $0.9 billion relates to interest on debt and $2.7 billion relates to progress
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payments on our ship orders and the final installments payable due upon the delivery of Silver Dawn, Wonder of the Seas and Celebrity Beyond.
As of September 30, 2021, we had liquidity of $4.1 billion, including $0.1 billion of undrawn revolving credit facility capacity, $3.3 billion in cash and cash equivalents, and a $0.7 billion commitment for a 364-day term loan facility available to draw at anytime prior to August 12, 2022. Our revolving credit facilities were mostly utilized through a combination of amounts drawn and letters of credit issued under the facilities as of September 30, 2021. We have agreed with certain of our lenders not to pay dividends or engage in stock repurchases. Refer to Note 10. Shareholders' Equity to our consolidated financial statements for further information.

If any person acquires ownership of more than 50% of our common stock or, subject to certain exceptions, during any 24-month period, a majority of our board of directors is no longer comprised of individuals who were members of our board of directors on the first day of such period, we may be obligated to prepay indebtedness outstanding under our credit facilities, which we may be unable to replace on similar terms. Our public debt securities also contain change of control provisions that would be triggered by a third-party acquisition of greater than 50% of our common stock coupled with a ratings downgrade. If this were to occur, it would have an adverse impact on our liquidity and operations.

Based on our assumptions and estimates and our financial condition, we believe that the liquidity resulting from the actions mentioned above will be sufficient to fund our liquidity requirements over at least the next twelve months. However, there is no assurance that our assumptions and estimates are accurate due to possible unknown variables related to this unprecedented suspension of our operations and, as such, there is inherent uncertainty in our ability to predict future liquidity requirements.
Debt Covenants
Both our export credit facilities and our non-export credit facilities contain covenants that require us, among other things, to maintain a fixed charge coverage ratio of at least 1.25x and limit our net debt-to-capital ratio to no more than 62.5%, and under certain facilities, to maintain a minimum level of shareholders' equity. The fixed charge coverage ratio is calculated by dividing net cash from operations for the past four quarters by the sum of dividend payments plus scheduled principal debt payments in excess of any new financings for the past four quarters. Our minimum net worth and maximum net debt-to-capital calculations exclude the impact of Accumulated other comprehensive loss on total shareholders’ equity.
During the first quarter of 2021, we amended $4.9 billion of our non-export credit facilities and $6.3 billion of our export credit facilities, and certain credit card processing agreements, to extend the waiver of our financial covenants through and including at least the third quarter of 2022, and subsequently in the third quarter of 2021, we entered into a letter agreement to extend the waiver period for our export credit facilities to the end of the fourth quarter of 2022.
In addition, pursuant to the amendments for the non-export credit facilities, we have modified the manner in which such covenants are calculated, temporarily in certain cases and permanently in others, as well as the levels at which our net debt to capitalization covenant will be tested during the period commencing immediately following the end of the waiver period and continuing through the end of 2023.
The amendments impose a monthly-tested minimum liquidity covenant of $350 million. In addition, the amendments to the non-export credit facilities place restrictions on paying cash dividends and effectuating share repurchases through the end of the third quarter of 2022, while the export credit facility amendments require us to prepay any deferred amounts if we elect to issue dividends or complete share repurchases. As of September 30, 2021, we were in compliance with the applicable minimum liquidity covenant and we estimate that we will be in compliance for at least the next twelve months.
Any further covenant waivers may lead to increased costs, increased interest rates, additional restrictive covenants and other available lender protections as may be agreed with our lenders. There can be no assurance that we would be able to obtain additional waivers in a timely manner, or on acceptable terms. If we require additional waivers and are not able to obtain them or repay the debt facilities, this would lead to an event of default and potential acceleration of amounts due under all of our outstanding debt and derivative contracts.
If we require additional waivers on the credit card processing agreements and are not able to obtain them, this could lead to the termination of these agreements or the trigger of reserve requirements.
Dividends
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During the first quarter of 2020, we declared a cash dividend on our common stock of $0.78 per share, which was paid in April 2020. During the first quarter of 2020, we also paid a cash dividend on our common stock of $0.78 per share, which was declared during the fourth quarter of 2019.
During the second quarter of 2020, we agreed with certain of our lenders not to pay dividends or engage in common stock repurchases for so long as our debt covenant waivers are in effect. In addition, in the event we declare a dividend or engage in share repurchases, we will need to repay the amounts deferred under our export credit facilities. Accordingly, we did not declare a dividend during the six consecutive quarters ending September 30, 2021. Pursuant to amendments made to these agreements during the first quarter of 2021, the restrictions on paying cash dividends and effectuating share repurchases were extended through and including the third quarter of 2022.



Item 3. Quantitative and Qualitative Disclosures About Market Risk
For a discussion of our market risks, refer to Part II, Item 7A. Quantitative and Qualitative Disclosures About Market Risk in our Annual Report on Form 10-K for the year ended December 31, 2020. There have been no significant developments or material changes since the date of our 2020 Annual Report.
Item 4. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, conducted an evaluation of the effectiveness of our disclosure controls and procedures, as such term is defined in Exchange Act Rule 13a-15(e), as of the end of the period covered by this Quarterly Report on Form 10-Q. Based upon such evaluation, our Chief Executive Officer and Chief Financial Officer concluded that those disclosure controls and procedures are effective to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is accumulated and communicated to management, including our Chief Executive Officer and our Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure and are effective to provide reasonable assurance that such information is recorded, processed, summarized and reported within the time periods specified by the SEC’s rules and forms.
Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over financial reporting identified in connection with the evaluation required by Exchange Act Rule 13a-15(d) during the quarter ended September 30, 2021 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Inherent Limitations on Effectiveness of Controls
Readers are cautioned that any system of controls, however well designed and operated, can provide only reasonable, and not absolute, assurance that the objectives of the system will be met. In addition, the design of any control system is based in part upon certain assumptions about the likelihood of future events. Because of these and other inherent limitations of control systems, there is only reasonable assurance that our controls will succeed in achieving their goals under all potential future conditions.
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PART II. OTHER INFORMATION

Item 1. Legal Proceedings
As previously reported, two lawsuits were filed against us in August 2019 in the U.S. District Court for the Southern District of Florida (the "Court") under Title III of the Cuban Liberty and Democratic Solidarity Act, also known as the Helms-Burton Act. The complaint filed by Havana Docks Corporation ("Havana Docks Action") alleges it holds an interest in the Havana Cruise Port Terminal, and the complaint filed by Javier Garcia-Bengochea (the "Port of Santiago Action") alleges that he holds an interest in the Port of Santiago, Cuba, both of which were expropriated by the Cuban government. The complaints further allege that we trafficked in those properties by embarking and disembarking passengers at these facilities. The plaintiffs seek all available statutory remedies, including the value of the expropriated property, plus interest, treble damages, attorneys’ fees and costs. In the Havana Docks Action, we and the plaintiff have filed motions for summary judgment, which remain pending, and the trial has been scheduled for February 28, 2022. The Court dismissed the Port of Santiago Action with prejudice on the basis that the plaintiff lacked standing, and the plaintiff’s appeal of the dismissal is awaiting a decision by the appellate court. We believe we have meritorious defenses to the claims alleged in both the Havana Docks Action and the Port of Santiago Action, and we intend to vigorously defend ourselves against them. We believe that it is unlikely that the outcome of either action will have a material adverse impact to our financial condition, results of operations or cash flows. However, the outcome of litigation is inherently unpredictable and subject to significant uncertainties, and there can be no assurances that the final outcome of either case will not be material.
We are also routinely involved in claims typical within the cruise vacation industry. The majority of these claims are covered by insurance. We believe the outcome of such claims, net of expected insurance recoveries, will not have a material adverse impact on our financial condition or results of operations and cash flows.

Item 1A. Risk Factors
The risk factors set forth below and elsewhere in this Quarterly Report on Form 10-Q are important factors that could cause actual results to differ from expected or historical results. It is not possible to predict or identify all such risks. There may be additional risks that we consider not to be material, or which are not known, and any of these risks could have the effects set forth below. The ordering of the risk factors set forth below is not intended to reflect any Company indication of priority or likelihood. See Part I, Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations for a cautionary note regarding forward-looking statements.
COVID-19 and Financial Risks
The COVID-19 pandemic has had, and will continue to have, a material adverse impact on our business, results of operations and liquidity. The global spread of COVID-19, the unprecedented responses by governments and other authorities to control and contain the disease, including related variants, and challenges to global vaccination efforts, have caused significant disruptions, created new risks, and exacerbated existing risks to our business.
We have been, and will continue to be, negatively impacted by the COVID-19 pandemic, including impacts that resulted or may result from actions taken in response to the outbreak, including the occurrence and spread of related variants. Examples of these actions include, but are not limited to: travel bans and cruising advisories that resulted in the temporary suspension of our Global Brands' operations, and from which we have resumed limited operations; restrictions on the movement and gathering of people; social distancing measures; shelter-in-place/stay-at-home orders and disruptions to businesses in our supply chain. In addition to the imposed restrictions affecting our business, the extent, duration, and magnitude of the COVID-19 pandemic’s effect on the economy and consumer demand for cruising and travel is still rapidly fluctuating and difficult to predict. As such, these impacts may persist for an extended period of time or even become more pronounced, as we are permitted to and/or continue to resume operations.
The COVID-19 pandemic also has elevated risks affecting significant parts of our business:
•     Operations: Our voluntary suspension of our global cruise operations commenced in March 2020 in response to the COVID-19 outbreak. We have restarted our global cruise operations in a phased manner, following the requirements and recommendations of regulatory agencies, with reduced guest occupancy, modified itineraries and enhanced health, safety and vaccination protocols.
There is no assurance that our plan to resume operations will be successful and without material setbacks, including our ability to conduct sailings in consideration of the requirements and recommendations of regulatory agencies. It is possible that future COVID-19 outbreaks could occur onboard and, even if controlled and contained, it is uncertain as to whether we will need to suspend additional sailings and to what extent in such event. An outbreak could result in possible illness among our guests and crew, incremental costs, guest refunds and negative publicity and
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media attention. In addition, we may face challenges in executing our return to service plans as a result of new and evolving operating protocols, including the impact of state regulations and litigation regarding proof of passenger vaccination, and possible changes in regulations in the countries in which we operate and plan to operate.
Uncertainties remain as to the specifics, timing and costs of administering and implementing our health and safety measures, some of which may be significant. These measures also may negatively impact guest satisfaction. Based on our assessment of these requirements and recommendations, the status of COVID-19 infection and/or vaccination rates in the U.S. or globally or for other reasons, we may determine it necessary to cancel or modify certain of our Global Brands’ cruise sailings. We believe the impact to our global bookings resulting from COVID-19 will continue to have a material negative impact on our results of operations and liquidity, which may be prolonged beyond containment of the disease and its variants.
Our previous suspension of sailings and our gradual resumption of operations has led to a significant decline in our revenues and cash inflows, which required us to take cost and capital expenditure containment actions. Consequently, we reduced and furloughed some of our workforce, with approximately 23% of our U.S. shoreside employee base being impacted in 2020 and, except for the minimum safe manning shipboard crew required to operate our ships, our shipboard crew are gradually being notified about new assignments as operations resume over time. As a result of these actions, we may be challenged in rebuilding and vaccinating the rest of our workforce which could further delay our resumption of operations. Furthermore, our efforts to vaccinate returning crew members could be hindered if vaccine availability does not keep pace with the timing of our phased resumption of operations. In addition, we have reduced our planned capital spending through 2021, which may negatively impact or delay our execution of planned growth strategies, particularly as it relates to investments in our ships, technology, and our expansion of land-based developments. We also have taken actions to monitor and mitigate changes in our supply chain, and port destination availability, which may strain relationships with our vendors and port partners.
If we are unable to satisfy the safety standards applicable to our sailings, our operations may be negatively impacted and we could be exposed to reputational and legal risks. Due to the unprecedented and uncertain nature of the COVID-19 pandemic and related regulatory guidance, it is difficult to predict the impact of further disruptions and their magnitude. In addition, we had never previously experienced a complete cessation of our cruising operations, and as a consequence, our ability to predict the impact of such a cessation on our brands and future prospects is limited and such impact is uncertain.
•Results of Operations: Our previous suspension of sailings materially impacted the results of our operations. We have incurred and will continue to incur significant costs as we accommodate passengers with future cruise credits. In addition, we have incurred and will likely continue to incur significant overhead costs associated with layup of our fleet that has not resumed operations and enhanced COVID-19 related cleaning, testing, vaccination and other mitigation procedures. We may experience volatility in demand for cruising for an indeterminable length of time due to the uncertain nature of the COVID-19 pandemic and to ongoing concerns about health and safety, and we cannot predict when we will return to pre-outbreak demand or fare pricing or if we will return to such levels in the foreseeable future. In turn, these negative impacts to our financial performance have resulted and may continue to result in impairments of our long-lived and intangible assets, which has influenced our decision making relating to early disposal, sale or retirement of assets. Following the resumption of operations, our Global Brands and our Partner Brands may be subject to the continued impact of the COVID-19 pandemic. Additionally, any future profitability will be impacted by increased debt service costs as a result of our liquidity actions.
•Liquidity: The suspension of our sailings and the reduction in demand for future cruising has adversely impacted our liquidity as we experienced a significant increase in refunds of customer deposits while cash inflows from new or existing bookings on future sailings was reduced sharply compared to pre-pandemic levels. As a result, we have taken actions to increase our liquidity through a combination of operating expense reductions during 2020, capital expense reductions and and financing activities. Refer to Note 7. Debt to our consolidated financial statements under Item 1. Financial Statements for further discussion of our 2021 financing activities.
We have agreed with certain of our lenders that we will not pay dividends or engage in stock repurchases until after the third quarter of 2022. Thereafter, in the event we declare a dividend or engage in stock repurchases we will need to repay the amounts deferred under our export credit facilities. On February 25, 2021, S&P Global downgraded our senior unsecured rating from B+ to B, which had no financial impact, and downgraded our $3.32 billion Secured Notes and Silversea Notes, which were fully repaid in June 2021 with the proceeds from the $650 million June Unsecured Notes, from BB to BB-. This downgrade had no impact on the terms of the notes. Our ability to raise additional financing, whether or not secured, could be limited if our credit rating is further downgraded, and/or if we fail to comply with applicable covenants governing our outstanding indebtedness, and/or if overall financial market conditions worsen. Additionally, due to the complexity of the pandemic’s impact to the economy and
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uncertainty of its duration, we cannot guarantee that assumptions used to project our liquidity needs will be correct, which may result in the need for additional financing and/or may result in the inability to satisfy covenants required by our current credit facilities. If we continue to raise additional funds through equity or convertible debt issuances, our shareholders could experience dilution of their ownership interest, and these securities could have rights, preferences, and privileges that are superior to that of holders of our ordinary shares. If we raise additional funds by issuing debt, we may be subject to additional limitations on our operations due to restrictive covenants, which may be more restrictive than the covenants in our existing debt agreements, and we may be required to further encumber our assets. Also, as a result of our additional debt issuances, we will require a significant amount of cash to service our debt and sustain operations. Our ability to generate cash depends on factors beyond our control and we may be unable to repay or repurchase debt at maturity. If adequate funds are not available on acceptable terms, or at all, we may be unable to fund our operations, or respond to competitive pressures, any of which could negatively affect our business. There is no guarantee that financing will be available in the future or that such financing will be available with similar terms or terms that are commercially acceptable to us. Further, if any government agrees to provide us with disaster relief assistance, or other assistance due to the impacts of the COVID-19 pandemic, and we determine it is beneficial to seek such government assistance, it may impose restrictions on executive compensation, share buybacks, dividends, prepayment of debt and other restrictions until the aid is repaid or redeemed in full, which could significantly limit our corporate activities and adversely impact our business and operations. We cannot assure you that any more such disaster relief would be available to us.
We may not be able to obtain sufficient financing or capital for our needs or may not be able to do so on terms that are acceptable or consistent with our expectations.
To fund our capital expenditures (including new ship orders), operations and scheduled debt payments, we have historically relied on a combination of cash flows provided by operations, drawdowns under available credit facilities, the incurrence of additional indebtedness and the sale of equity or debt securities in private or public securities markets. Any circumstance or event which leads to a decrease in consumer cruise spending, such as worsening global economic conditions or significant incidents impacting the cruise industry, including the COVID-19 pandemic, negatively affects our operating cash flows and currently, we have no net cash flows from operations. In the case of the COVID-19 pandemic and the resulting suspension of our operations, these circumstances have also resulted in credit rating downgrades.
Our ability to access additional funding as and when needed, our ability to timely refinance and/or replace our outstanding debt securities and credit facilities on acceptable terms and our cost of funding will depend upon numerous factors including, but not limited to, the strength of the financial markets, our recovery and financial performance, the recovery and performance of our industry in general and the size, scope and timing of our financial needs. In addition, even where financing commitments have been secured, significant disruptions in the capital and credit markets could cause our banking and other counterparties to breach their contractual obligations to us or could cause the conditions to the availability of such funding not to be satisfied. This could include failures of banks or other financial service companies to fund required borrowings under our loan agreements or to pay us amounts that may become due or return collateral that is refundable under our derivative contracts for hedging of fuel prices, interest rates and foreign currencies or other agreements. If any of the foregoing occurs for a prolonged period of time, it will have a long-term negative impact on our cash flows and our ability to meet our obligations cannot be guaranteed.
Our substantial debt could adversely affect our financial condition.
We have a substantial amount of debt and significant debt service obligations. As of September 30, 2021, we had total debt of $20.8 billion. Our substantial debt could have negative consequences for us. For example, our substantial debt could require us to dedicate a large portion of our cash flows from operations to service debt and fund repayments on our debt, thereby reducing the availability of our cash flow to fund working capital, capital expenditures and other general corporate purposes; increase our vulnerability to adverse general economic or industry conditions; limit our flexibility in planning for, or reacting to, changes in our business or the industry in which we operate; place us at a competitive disadvantage compared to our competitors that have less debt; make us more vulnerable to downturns in our business, the economy or the industry in which we operate, including the current downturn related to COVID-19; limit our ability to raise additional debt or equity capital in the future to satisfy our requirements relating to working capital, capital expenditures, development projects, strategic initiatives or other purposes; restrict us from making strategic acquisitions, introducing new technologies or exploiting business opportunities; limit or restrict our ability to obtain and maintain performance bonds to cover our financial responsibility requirements in various jurisdictions for non-performance of guest travel, casualty and personal injury; make it difficult for us to satisfy our obligations with respect to our debt; and increase our exposure to the risk of increased interest rates as certain of our borrowings are (and may be in the future) at a variable rate of interest.
Despite our leverage, we may incur more debt, which could adversely affect our business.
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We may incur substantial additional debt in the future. Except for the restrictions under the indentures governing our Secured Notes and our 9.125% senior guaranteed notes due in 2023 (the “Unsecured Notes”) and certain of our other debt instruments, including our unsecured bank and export credit facilities, we are not restricted under the terms of our debt instruments from incurring additional debt. Although the indentures governing the Secured Notes, the Unsecured Notes, and certain of our other debt instruments, including our unsecured bank and export credit facilities, contain restrictions on the incurrence of additional debt, these restrictions are subject to a number of significant qualifications and exceptions, and under certain circumstances the amount of debt that could be incurred in compliance with these restrictions could be substantial. Our debt instruments also do not and will not prevent us from incurring liabilities that do not constitute “Indebtedness” as defined therein. In the event that we execute and borrow under the $700 million commitment available to draw on at any time prior to August 12, 2022 for a 364-day term loan facility, the credit agreement that would govern such term loan facility would impose substantially similar restrictions (including the related qualifications and exceptions) as are set forth in the indenture governing the Unsecured Notes. If new debt is added to our existing debt levels, the related risks that we now face would increase. As of September 30, 2021, we have commitments for approximately $10.3 billion of debt to finance the purchase of 10 ships on order by our Royal Caribbean International, Celebrity Cruises and Silversea Cruises brands, ten of which are guaranteed by the export credit agencies in the countries in which the ships are being built. The ultimate size of each facility will depend on the final contract price (including change orders and owner’s supply) as well as fluctuations in the EUR/USD exchange rate.
The terms of existing debt financing give, and any future preferred equity or debt financing may give, holders of any preferred securities or debt securities rights that are senior to rights of our common shareholders or impose more stringent operating restrictions on our company.
The holders of our existing debt have rights, preferences and privileges senior to those of holders of our common stock in the event of liquidation. If we incur additional debt or raise equity through the issuance of preferred stock or convertible securities, the terms of the debt or the preferred stock issued may give the holders rights, preferences and privileges senior to those of holders of our common stock, particularly in the event of liquidation. The terms of the debt may also impose additional and more stringent restrictions on our operations. If we raise funds through the issuance of additional equity, the ownership percentage of our existing shareholders would be diluted. Debt or equity financing may not be available to us on acceptable terms.
We will require a significant amount of cash to service our debt and sustain our operations. Our ability to generate cash depends on many factors beyond our control, and we may not be able to generate cash required to service our debt.
Our ability to make scheduled payments on our debt service obligations or refinance our debt depends on our future operating and financial performance and ability to generate cash. This will be affected by our ability to successfully implement our business strategy, as well as general economic, financial, competitive, regulatory and other factors beyond our control, such as the disruption caused by the COVID-19 pandemic. If we cannot generate sufficient cash to meet our debt service obligations or fund our other business needs, we may, among other things, need to refinance all or a portion of our debt, obtain additional financing, delay planned capital expenditures or sell assets. We cannot assure you that we will be able to generate sufficient cash through any of the foregoing. If we are not able to refinance any of our debt, obtain additional financing or sell assets on commercially reasonable terms or at all, we may not be able to satisfy our obligations with respect to our debt.
We are subject to restrictive debt covenants that may limit our ability to finance future operations and capital needs and to pursue business opportunities and activities. In addition, if we fail to comply with any of these restrictions, it could have a material adverse effect on us.
Certain of our debt instruments, including our indentures and our unsecured bank and export credit facilities, limit our flexibility in operating our business. For example, certain of our loan agreements and indentures restrict or limit our and our subsidiaries’ ability to, among other things: incur or guarantee additional indebtedness; pay dividends or distributions on, or redeem or repurchase capital stock and make other restricted payments; make investments; consummate certain asset sales; engage in certain transactions with affiliates; grant or assume certain liens; and consolidate, merge or transfer all or substantially all of our assets. Both our export credit facilities and our non-export credit facilities contain covenants that will, once our current waivers expire, require us, among other things, to maintain a specified minimum fixed charge coverage ratio and limit our net debt-to-capital ratio. Refer to Note 7. Debt to our consolidated financial statements under Item 1. Financial Statements for further discussion on our covenants and existing waivers.
All of these limitations are subject to significant exceptions and qualifications. Despite these exceptions and qualifications, we cannot assure you that the operating and financial restrictions and covenants in certain of our debt instruments will not adversely affect our ability to finance our future operations or capital needs or engage in other business activities that may be in our interest. Any future indebtedness may include similar or other restrictive terms. In addition, our ability to comply with these covenants, and restrictions may be affected by events beyond our control. These include prevailing economic, financial and industry conditions. If we breach any of these covenants or restrictions, we could be in default under
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such indebtedness and certain of our other debt instruments and the relevant debt holders or lenders could elect to declare the debt, together with accrued and unpaid interest and other fees, if any, immediately due and payable and proceed against any collateral securing that debt. If the debt under certain of our debt instruments that we enter into were to be accelerated, our liquid assets may be insufficient to repay in full such indebtedness. Borrowings under other debt instruments that contain cross-default provisions also may be accelerated or become payable on demand. In these circumstances, our assets may not be sufficient to repay in full that indebtedness and our other indebtedness then outstanding.
In addition, our ability to maintain our credit facilities may also be impacted by changes in our ownership base. More specifically, we may be required to prepay our bank financing facilities if any person acquires ownership of more than 50% of our common stock or, subject to certain exceptions, during any 24-month period, a majority of our board of directors is no longer comprised of individuals who were members of our board of directors on the first day of such period. Our public debt securities also contain change of control provisions that would be triggered by a third-party acquisition of greater than 50% of our common stock coupled with a ratings downgrade, which would require us to offer to repurchase our public debt securities in the event of such change of control.
If we elect to settle conversions of our convertible notes, if any, in shares of our common stock or a combination of cash and shares of our common stock, conversions of our convertible notes may result in substantial dilution for our existing shareholders.
We have an aggregate principal amount of $1.725 billion in convertible notes outstanding. The notes are convertible into shares of our common stock, cash, or a combination of common stock and cash, at our election. Prior to March 15 and August 15, 2023, our convertible notes issued June 2020 and October 2020, respectively, will be convertible at the option of holders during certain periods only upon satisfaction of certain conditions. Beyond those dates, the convertible notes will be convertible at any time until the close of business on the second scheduled trading day immediately preceding their maturity date. If we elect to settle conversions of our convertible notes, if any, in shares of our common stock or a combination of common stock and cash, conversions of our convertible notes may result in significant dilution to our shareholders.
We did not declare dividends on our common stock in the quarter ended September 30, 2021 and do not expect to pay dividends on our common stock for the foreseeable future.
No cash dividends were declared on our common stock during the six consecutive quarters ended September 30, 2021. We expect that any income received from operations will be devoted to our future operations and recovery. We do not expect to pay cash dividends on our common stock for the foreseeable future due to our agreement with certain of our lenders not to pay dividends until the end of the third quarter 2022. In addition, in the event we thereafter declare a dividend, we will need to repay our debt deferral. Payment of dividends would, in any case, depend upon our profitability at the time, cash available for those dividends, and other factors as our board of directors may consider relevant.
Increased regulatory oversight, changes in the method pursuant to which the LIBOR rates are determined and potential phasing out of LIBOR after 2021 may adversely affect the value of a portion of our indebtedness.
A portion of our indebtedness bears interest at variable rates that are linked to changing market interest rates. As a result, an increase in market interest rates would increase our interest expense and our debt service obligations. As of September 30, 2021, we had approximately $7.0 billion of indebtedness that bears interest at variable rates. This amount represented approximately 32.5% of our total indebtedness. As of September 30, 2021, a hypothetical 1% increase in prevailing interest rates would increase our forecasted 2021 interest expense by approximately $16.4 million.
In addition, on July 27, 2017, the United Kingdom’s Financial Conduct Authority ("FCA"), which regulates the London Interbank Offered Rate (“LIBOR”), announced that it will no longer persuade or compel banks to submit LIBOR rates after 2021. Also in 2017, the Alternative Reference Rates Committee, a steering committee comprised of, among other entities, large U.S. financial institutions, selected the Secured Overnight Financing Rate (“SOFR”) as the rate recommended to replace U.S. dollar LIBOR ("USD LIBOR"). SOFR measures the cost of borrowing cash overnight, backed by U.S. Treasury securities. SOFR is observed and backward-looking, which stands in contrast with LIBOR under the current methodology, which is an estimated forward-looking rate and relies, to some degree, on the expert judgment of submitting panel members. On December 4, 2020, ICE Benchmark Administration ("IBA"), the administrator of LIBOR, released a consultation disclosing its intent to cease publication of one-week and two-month USD LIBOR after December 31, 2021, but continue to publish the remaining tenors of USD LIBOR for an additional 18 months, through June 30, 2023. These remaining tenors of USD LIBOR—overnight, one-month, three-month, six-month and 12-months—encompass the tenors referenced in our borrowings and interest rate swaps. On March 5, 2021, the FCA confirmed that it will not require IBA to publish LIBOR beyond the dates proposed in the consultation.
U.S. regulators continue to encourage banks to cease entering into new contracts that use USD LIBOR as a reference rate by December 31, 2021. However, uncertainty remains as many market participants await the development of term SOFR
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products, i.e., forward-looking rates, and benchmark providers are developing indices that might co-exist with SOFR. If LIBOR ceases to exist, the level of interest payments on the portion of our indebtedness that bears interest at variable rates would be affected, which may materially impact the amount of our interest payments under such debt. Further, if we, the agent or the lenders holding a majority of the outstanding loans or commitments under such indebtedness determine that a LIBOR rate is no longer available, that a specific date has been announced after which a LIBOR rate will no longer be made available, or that syndicated loans are being executed or amended to adopt a replacement rate, then the terms of such indebtedness will allow us and the applicable agent to amend such indebtedness to implement a replacement rate, subject to the negative consent of the lenders holding a majority of the outstanding loans or commitments. Such replacement rate will give due consideration to any evolving or then-existing conventions for similar credit facilities, which may result in different than expected interest payments.
Macroeconomic, Business, Market and Operational Risks
Adverse worldwide economic or other conditions could reduce the demand for cruises and passenger spending, adversely impacting our operating results, cash flows and financial condition including impairing the value of our goodwill, ships, trademarks and other assets and potentially affecting other critical accounting estimates where the change may be material to our operating results.
In addition to health and safety concerns, demand for cruises is affected by international, national, and local economic conditions. Weak or uncertain economic conditions may impact consumer confidence and pose a risk as vacationers postpone or reduce discretionary spending. This, in turn, may result in cruise booking slowdowns, decreased cruise prices and lower onboard revenues, even after the COVID-19 pandemic has ended and/or related health and safety concerns are reduced. Given the global nature of our business, we are exposed to many different economies and our business could be hurt by challenging conditions in any of our markets. Any significant deterioration of international, national, or local economic conditions, including those resulting from geopolitical events and/or international disputes and the current economic and employment impact of the COVID-19 pandemic in countries where many of our customers reside, could result in a prolonged period of booking slowdowns, depressed cruise prices and/or reduced onboard revenues, even after the COVID-19 pandemic has ended and/or related health and safety concerns are reduced. Additionally, the continued impact of COVID-19 on the financial markets is complicated and we cannot predict its effect on geopolitical events and/or international trade policies as countries attempt to mitigate the impact of the pandemic and as they re-open their economies or re-implement lockdown measures. Additionally, uncertainties resulting from the United Kingdom’s recent exit from the European Union may impact our business.
Our operating costs could increase due to market forces and economic or geopolitical factors beyond our control.
Our operating costs, including fuel, food, payroll and benefits, airfare, taxes, insurance, and security costs, can be, and have been, subject to increases due to market forces and economic or geopolitical conditions or other factors beyond our control, including as a result of rerouting itineraries due to ports closing or not accepting passengers in connection with the COVID-19 pandemic. Increases in these operating costs could adversely affect our future profitability.
Any further impairment of our goodwill, long-lived assets, equity investments and notes receivable could adversely affect our financial condition and operating results.
We evaluate goodwill for impairment on an annual basis, or more frequently when circumstances indicate that the carrying value of a reporting unit may not be recoverable. A challenging operating environment, such as is currently being experienced under the impact of COVID-19, impacts affecting consumer demand or spending, the deterioration of general macroeconomic conditions, or other factors, could result in a change to the future cash flows we expect to derive from our operations. Reductions of cash flows used in the valuation analyses may result in the recording of impairments, which could adversely affect our financial condition and operating results.
Price increases for commercial airline service for our guests or major changes or reductions in commercial airline service and/or availability could adversely impact the demand for cruises and undermine our ability to provide reasonably priced vacation packages to our guests.
Many of our guests depend on scheduled commercial airline services to transport them to or from the ports where our cruises embark or disembark. Increases in the price of airfare would increase the overall price of the cruise vacation to our guests, which may adversely impact demand for our cruises. In addition, changes in the availability and/or regulations governing commercial airline services, including those resulting from the COVID-19 pandemic, have adversely affected and could continue to adversely affect our guests’ ability to obtain air travel, as well as our ability to transfer our guests to or from our cruise ships, which could adversely affect our results of operations.
Fears of terrorist attacks, war, and other hostilities could have a negative impact on our results of operations.
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Events such as terrorist attacks, war (or war-like conditions), conflicts (domestic or cross-border), civil unrest and other hostilities, including an escalation in the frequency or severity of incidents, and the resulting political instability, travel restrictions and advisories, and concerns over safety and security aspects of traveling or the fear of any of the foregoing have had, and could have in the future, a significant adverse impact on demand and pricing in the travel and vacation industry. In view of our global operations, we are susceptible to a wide range of adverse events. These events could also result in additional security measures taken by local authorities which may potentially impact access to ports and/or destinations.
Disease outbreaks and an increase in concern about the risk of illness could adversely impact our business and results from operations.
Disease outbreaks and increased concern related to illness when traveling to, from, and on our ships could cause a drop in demand for cruises, guest cancellations, travel restrictions, an unavailability of ports and/or destinations, cruise cancellations, ship redeployments and an inability to source our crew, provisions or supplies from certain places. Due to the complex and evolving nature of the COVID-19 pandemic, we cannot predict the duration of the effect of the current pandemic, and the magnitude is dependent on the development of future events and responses from governments, other authorities, and individual consumers. Our industry, including our passengers and crew, may be subject to enhanced health and safety requirements in the future which may be costly and take a significant amount of time to implement across our fleet and we may be subject to concerns that cruises are susceptible to the spread of infectious diseases such as COVID-19. For example, local governments may establish their own set of rules for self-quarantines and/or require proof of individuals health status or vaccination prior to or upon visiting. These effects may extend beyond any resolution of the current COVID-19 pandemic through the distribution and roll-out of vaccines or effective therapeutic treatments, and the impact of any of these factors could have a material adverse effect on our business and results of operations. In addition, the new operating protocols we are developing and any other health protocols we may develop or that may be required by law in the future in response to COVID-19, and related variants, or other infectious diseases may be costly to develop and implement and may be less effective than we expected in reducing the risk of infection and spread of such disease on our cruise ships, which will negatively impact our operations and expose us to reputational and legal risks.
Incidents on ships, at port facilities, land destinations and/or affecting the cruise vacation industry in general, and the associated negative media coverage and publicity, have affected and could continue to affect our reputation and impact our sales and results of operations.
Cruise ships, private destinations, port facilities and shore excursions operated and/or offered by us and third parties involve the risk of accidents, illnesses, mechanical failures, environmental incidents and other incidents which may bring into question safety, health, security and vacation satisfaction and negatively impact our sales, operations and reputation. Incidents involving cruise ships, and, in particular, the safety, health and security of guests and crew and the media coverage thereof, including those related to the COVID-19 pandemic, have impacted and could continue to impact demand for our cruises and pricing in the industry. In particular, we cannot predict the impact on our financial performance and our cash flows required for cash refunds of deposits as a result of the pause in our global fleet cruise operations, which may be prolonged, and the public’s concern regarding the health and safety of travel, especially by cruise ship, and related decreases in demand for travel and cruising. Moreover, our ability to attract and retain guests and crew depends, in part, upon the perception and reputation of our company and our brands and the public’s concerns regarding the health and safety of travel generally, as well as regarding the cruising industry and our ships specifically. Our reputation and our business could also be damaged by continued or additional negative publicity regarding the cruise industry in general, including publicity regarding the spread of contagious disease such as COVID-19, over-tourism in key ports and destinations, and the potentially adverse environmental impacts of cruising. The considerable expansion in the use of social and digital media over recent years has compounded the potential scope and reach of any negative publicity. In addition, incidents involving cruise ships may result in additional costs to our business, increasing government or other regulatory oversight and, in certain cases, potential litigation.
Significant weather, climate events and/or natural disasters could adversely impact our business and results from operations.
Natural disasters (e.g., earthquakes, volcanos, wildfires), weather and/or climate events (including hurricanes and typhoons) could impact our source markets and operations resulting in travel restrictions, guest cancellations, an inability to source our crew or our provisions and supplies from certain places. We are often forced to alter itineraries and occasionally cancel a cruise or a series of cruises or to redeploy our ships due to these types of events, which could have an adverse effect on our sales, operating costs and profitability in the current and future periods. Increases in the frequency, severity or duration of these types of events could exacerbate their impact and cause further disruption to our operations or make certain destinations less desirable or unavailable impacting our revenues and profitability further. Any of the foregoing could have an adverse impact on our results of operations and on industry performance.

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Our reliance on shipyards, their subcontractors and our suppliers to implement our newbuild and ship upgrade programs and to repair and maintain our ships exposes us to risks which, if realized, could adversely impact our business.
We rely on shipyards, their subcontractors and our suppliers to effectively construct our new ships and to repair, maintain, and upgrade our existing ships on a timely basis and in a cost-effective manner; and there are a limited number of shipyards with the capability and capacity to build, repair, maintain and/or upgrade our ships. As such, any disruptions affecting the newbuild or fleet modernization supply chain will adversely impact our business as there are limited substitutes.
The COVID-19 pandemic has led to suspensions and/or slowdowns of work at certain shipyards, which impacts our ability to construct new ships when and as planned, our ability to timely and cost-effectively procure new capacity, and our ability to execute scheduled drydocks and/or fleet modernizations. The effects of the COVID-19 pandemic on the shipyards, their subcontractors, and our suppliers have resulted in delays in our previously scheduled ship deliveries, which are currently under discussion with the shipyards. Variations from our plan could have a significant negative impact on our business operations and financial condition.
Building, repairing, maintaining and/or upgrading a ship is sophisticated work that involves significant risks. Material increases in commodity and raw material prices, such as the recent escalation in steel pricing, and other cost pressures impacting the construction of a new ship, such as the cost of labor and financing, could adversely impact the shipyard’s ability to build the ship on a cost-effective basis. Shipyards, their subcontractors, and/or our suppliers may encounter financial, technical or design problems when doing these jobs. If materialized, these problems could impact the timely delivery or costs of new ships or the ability of shipyards to repair and upgrade our fleet in accordance with our needs or expectations. In addition, delays, mechanical faults and/or unforeseen incidents may result in cancellation of cruises, or, in more severe situations, delays of new ship orders, or necessitate unscheduled drydocks. Such events could result in lost revenue, increased operating expenses, or both, and thus adversely affect our results of operations.
An increase in capacity worldwide or excess capacity in a particular market could adversely impact our cruise sales and/or pricing.
Although our ships can be redeployed, cruise sales and/or pricing may be impacted by the introduction of new ships into the marketplace, reductions in cruise capacity, overall market growth and deployment decisions of ourselves and our competitors. As of September 30, 2021, a total of 92 new ships with approximately 200,000 berths were on order for delivery through 2027 in the cruise industry, including 13 ships currently scheduled to be delivered to us. The further net growth in capacity from these new ships and future orders, without an increase in the cruise industry’s demand and/or share of the vacation market, could depress cruise prices and impede our ability to achieve yield improvement. Further, cruise prices and yield improvement could face additional pressure due to the pace at which we and other cruise line operators return to service.
In addition, to the extent that we or our competitors deploy ships to a particular itinerary/region and the resulting capacity in that region exceeds the demand, we may lower pricing and profitability may be lower than anticipated. This risk exists in emerging cruise markets, where capacity has grown rapidly over the past few years and in mature markets where excess capacity is typically redeployed. Any of the foregoing could have an adverse impact on our results of operations, cash flows and financial condition, including potentially impairing the value of our ships and other assets.
Unavailability of ports of call may adversely affect our results of operations.
We believe that port destinations are a major reason why guests choose to go on a particular cruise or on a cruise vacation. The availability of ports and destinations is affected by a number of factors, including industry demand and competition for key ports and destinations, existing capacity constraints, constraints related to the size of certain ships, security, financial limitations on port development, exclusivity arrangements that ports may have with our competitors, geopolitical developments and local governmental regulations; and in light of the COVID-19 pandemic, port availability could also be subject to immediate change depending on local and/or onboard disease outbreaks or other government restrictions as well as limited availability when sailing resumes. Higher fuel costs also may adversely impact the destinations we choose to call upon on certain of our itineraries as they become too costly to include.
In addition, certain ports and destinations have faced a surge of both cruise and non-cruise tourism which, in certain cases, has fueled anti-tourism sentiments and related countermeasures to limit the volume of tourists allowed in these destinations. In certain destinations, countermeasures to limit the volume of tourists have been contemplated and/or put into effect, including proposed limits on cruise ships and cruise passengers. Potential restrictions in ports and destinations such as Venice, Barcelona or Key West, could limit the itinerary and destination options we can offer our passengers going forward.
Increased demand and competition for key ports of call or destinations, limitations on the availability or feasibility of use of specific ports of call and/or constraints on the availability of shore excursions and other service providers at such ports or destinations could adversely affect our operations and financial results.
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We may lose business to competitors throughout the vacation market.
We operate in the vacation market and cruising is one of many alternatives for people choosing a vacation. We therefore risk losing business not only to other cruise lines, but also to other vacation operators, which provide other leisure options, including hotels, resorts, internet-based alternative lodging sites and package holidays and tours.
We face significant competition from other cruise lines on the basis of cruise pricing, travel agent preference and also in terms of the nature of ships, services and destinations that we offer to guests. Our principal competitors within the cruise vacation industry include Carnival Corporation & plc, which owns, among others, Aida Cruises, Carnival Cruise Line, Costa Cruises, Cunard Line, Holland America Line, P&O Cruises, Princess Cruises and Seabourn; Disney Cruise Line; MSC Cruises; and Norwegian Cruise Line Holdings Ltd, which owns Norwegian Cruise Line, Oceania Cruises and Regent Seven Seas Cruises. Our revenues are sensitive to the actions of other cruise lines in many areas including pricing, scheduling, capacity and promotions, which can have a substantial adverse impact not only on our revenues, but on overall industry revenues.
In the event that we do not effectively market or differentiate our cruise brands from our competitors or otherwise compete effectively with other vacation alternatives and new or existing cruise companies, our results of operations and financial position could be adversely affected.
If we are unable to appropriately balance our cost management and capital allocation strategies with our goal of satisfying guest expectations, it may adversely impact our business success.
Our goals call for us to provide high quality products and deliver high quality services. There can be no assurance that we can successfully balance these goals with our cost management and capital allocation strategies. Our business also requires us to make capital allocation decisions across a broad scope of investment options with varying return profiles and time horizons for value realization. These include significant capital investment decisions such as ordering new ships, upgrading our existing fleet, enhancing our technology and/or data capabilities, and expanding our portfolio of land-based assets, based on expected market preferences, competition and projected demand. There can be no assurance that our strategies will be successful, which could adversely impact our business, financial condition and results of operations. For example, our ownership and operation of older tonnage, in particular during the business disruption caused by COVID-19, has resulted in impaired asset values due to expected returns that we will not be able to recover.
Our attempts to expand our business into new markets and new ventures may not be successful.
We opportunistically seek to grow our business through, among other things, expansion into new destinations or source markets and establishment of new ventures complementary to our current offerings. These attempts to expand our business increase the complexity of our business, require significant levels of investment and can strain our management, personnel, operations and systems. In addition, we have been unable to execute our attempts to expand our business as a result of the impacts of the COVID-19 pandemic, as described elsewhere herein. There can be no assurance that these business expansion efforts will develop as anticipated or that we will succeed, and if we do not, we may be unable to recover our investment, which could adversely impact our business, financial condition and results of operations.
Risks associated with our development and operation of key land-based destination projects may adversely impact our business or results of operations.
We have invested, either directly or indirectly through joint ventures and partnerships, in a growing portfolio of key land-based projects including port and terminal facilities, private destinations and multi-brand destination projects. These investments can increase our exposure to certain key risks depending on the scope, location, and the ownership and management structure of these projects. These risks include susceptibility to weather events, exposure to local political/regulatory developments and policies, logistical challenges and human resource and labor risks; in addition to location-specific safety, environmental, and health risks, including challenges posed by the COVID-19 pandemic and its effects locally where we have these projects and relationships.
Our reliance on travel agencies to sell and market our cruises exposes us to certain risks which, if realized, could adversely impact our business.
We rely on travel agencies to generate bookings for our ships. Accordingly, we must ensure that our commission rates and incentive structures remain competitive. If we fail to offer competitive compensation packages or fail to maintain our relationships, these agencies may be incentivized to sell cruises offered by our competitors to our detriment, which could adversely impact our operating results. Our reliance on third-party sellers is particularly pronounced in certain markets. In addition, the travel agent industry is sensitive to economic conditions that impact discretionary income of consumers. Significant disruptions, such as those caused by the COVID-19 pandemic, or contractions in the industry could reduce the number of travel agencies available for us to market and sell our cruises, which could have an adverse impact on our financial
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condition and results of operations. Additionally, the strength of our recovery from suspended operations could be delayed if we are not aligned and partnered with key travel agencies.
Business activities that involve our co-investments with third parties may subject us to additional risks.
Partnerships, joint ventures and other business structures involving our co-investments with third parties generally include some form of shared control over the operations of the business and create additional risks, including the event that other investors in such ventures become bankrupt or otherwise lack the financial resources to meet their obligations, or could have or develop business interests, policies or objectives that are inconsistent with ours. In addition to financial risks, our co-investment activities have also presented managerial and operational risks and expose us to reputational or legal concerns. These or other issues related to our co-investments with third parties could adversely impact our operations or liquidity. Due to the COVID-19 pandemic, Pullmantur S.A. filed for reorganization under the terms of the Spanish insolvency laws. In addition, with the exception of limited sailings outside of the U.S. starting in July 2020, TUI Cruises and Hapag-Lloyd Cruises have, for the most part, suspended sailings and their operations, results of operations and liquidity have been and will continue to be adversely materially impacted. The Company may be required to continue to provide funding for these affiliated entities and it is unclear when and to what extent these entities will fully resume operations and our ability to provide such funding will be limited by the level and terms of our outstanding indebtedness. Further, due to the arrangements we have in place with our partners in these ventures, we are limited in our ability to control the strategy of these ventures if and when they resume operations, or their use of capital and other key factors to their results of operation which could adversely affect our investments and impact our results of operations.
Past or pending business acquisitions or potential acquisitions that we may decide to pursue in the future carry inherent risks which could adversely impact our financial performance and condition.
The Company, from time to time, has engaged in acquisitions and may pursue acquisitions in the future, which are subject to, among other factors, the Company’s ability to identify attractive business opportunities and to negotiate favorable terms for such opportunities. Accordingly, the Company cannot make any assurances that potential acquisitions will be completed timely or at all, or that if completed, we would realize the anticipated benefits of such acquisition. Acquisitions also carry inherent risks such as, among others: (1) the potential delay or failure of our efforts to successfully integrate business processes and realizing expected synergies; (2) difficulty in aligning procedures, controls and/or policies; and (3) future unknown liabilities and costs that may be associated with an acquisition. In addition, acquisitions may also adversely impact our liquidity and/or debt levels, and the recognized value of goodwill and other intangible assets can be negatively affected by unforeseen events and/or circumstances, which may result in an impairment charge. Any of the foregoing events could adversely impact our financial condition and results of operations.
We rely on supply chain vendors and third-party service providers who are integral to the operations of our businesses. These vendors and service providers are also affected by COVID-19 and may be unable or unwilling to deliver on their commitments or may act in ways that could harm our business.
We rely on supply chain vendors to deliver key products to the operations of our businesses around the world. Any event impacting a vendor’s ability to deliver goods of the expected quality at the location and time needed could negatively impact our ability to deliver our cruise experience. Events impacting our supply chain could be caused by factors beyond the control of our suppliers or us, including inclement weather, natural disasters, new laws and regulations, labor actions, increased demand, problems in production or distribution and/or disruptions in third-party logistics, information technology or transportation systems, including those caused by the COVID-19 pandemic. Any such interruptions to our supply chain could increase our costs and could limit the availability of products critical to our operations.
In order to achieve cost and operational efficiencies, we outsource to third-party vendors certain services that are integral to the operations of our global businesses, such as our onboard concessionaires, certain of our call center operations, guest port services, logistics distribution and operation of a large part of our information technology systems, which are also affected by the COVID-19 pandemic. We are subject to the risk that certain decisions are subject to the control of our third-party service providers and that these decisions may adversely affect our activities. A failure to adequately monitor a third-party service provider’s compliance with a service level agreement or regulatory or legal requirements could result in significant economic and reputational harm to us. There is also a risk the confidentiality, privacy and/or security of data held by third parties or communicated over third-party networks or platforms could become compromised.
The potential unavailability of insurance coverage, an inability to obtain insurance coverage at commercially reasonable rates or our failure to have coverage in sufficient amounts to cover our incurred losses may adversely affect our financial condition or results of operations.
We seek to maintain appropriate insurance coverage at commercially reasonable rates. We normally insure based on the cost of an asset rather than replacement value and we also elect to self-insure, co-insure, or use deductibles in certain
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circumstances for certain risks such as loss of use of a ship or other business interruption. The limits of insurance coverage we purchase are based on the availability of the coverage, evaluation of our risk profile and cost of coverage. We do not carry business interruption insurance and accordingly we have no insurance coverage for loss of revenues or earnings from our ships or other operations. Accordingly, we are not protected against all risks and we cannot be certain that our coverage will be adequate for liabilities actually incurred which could result in an unexpected decrease in our revenue and results of operations in the event of an incident.
We are members of four Protection and Indemnity (“P&I”) clubs, which are part of a worldwide group of 13 P&I clubs, known as the International Group of P&I Clubs (the “IG”). P&I coverage provided by the clubs is on a mutual basis and we are subject to additional premium calls in the event of a catastrophic loss incurred by any member of the 13 P&I clubs, whereby the reinsurance limits purchased by the IG are exhausted. We are also subject to additional premium calls based on investment and underwriting shortfalls experienced by our own individual insurers. Certain liabilities, costs, and expenses associated with COVID-19 cases identified on or traced to our vessels are eligible for insurance coverage under our participation in these P&I clubs.
We cannot be certain that insurance and reinsurance coverage will be available to us and at commercially reasonable rates in the future or at all or, if available, that it will be sufficient to cover potential claims. Additionally, if we or other insureds sustain significant losses, the result may be higher insurance premiums, cancellation of coverage, or the inability to obtain coverage. The COVID-19 pandemic, for example, depending on its on-going scope, and duration and the associated insurance claims volumes driven by the pandemic, may potentially impact the insurance markets we rely on for coverage and could adversely impact both the coverage options available to us in the future as well as the premium costs we are required to pay for those coverages. Such events could adversely affect our financial condition or results of operations.
Disruptions in our shoreside or shipboard operations or our information systems may adversely affect our results of operations.
Our principal executive office and principal shoreside operations are located in Florida, and we have shoreside offices throughout the world. Actual or threatened natural disasters (e.g., hurricanes/typhoons, earthquakes, tornadoes, fires or floods), municipal lockdowns, curfews, quarantines, or similar events in these locations may have a material impact on our business continuity, reputation and results of operations. In addition, substantial or repeated information system failures, computer viruses or cyber attacks impacting our shoreside or shipboard operations could adversely impact our business. We do not generally carry business interruption insurance for our shoreside or shipboard operations or our information systems. As such, any losses or damages incurred by us could have an adverse impact on our results of operations.
Provisions of our Articles of Incorporation, By-Laws and Liberian law could inhibit others from acquiring us, prevent a change of control, and may prevent efforts by our shareholders to change our management.
Certain provisions of our Articles of Incorporation and By-Laws and Liberian law may inhibit third parties from effectuating a change of control of the Company without approval from our board of directors which could result in the entrenchment of current management. These include provisions in our Articles of Incorporation that prevent third parties, other than A. Wilhelmsen AS and Cruise Associates and their permitted transferees, from acquiring beneficial ownership of more than 4.9% of our outstanding shares without the consent of our board of directors.
Compliance and Regulatory Risks
Changes in U.S. or other countries’ foreign travel policy have affected, and may continue to affect, our results of operations.
Changes in U.S. foreign policy have in the past and could in the future result in the imposition of travel restrictions or travel bans on U.S. persons to certain countries or result in the imposition of travel advisories, warnings, rules, regulations or legislation exposing us to penalties or claims of monetary damages. In addition, many countries have adopted restrictions against U.S. travelers, and we currently cannot predict when those restrictions will be eased. The timing and scope of these changes and regulations can be unpredictable, and they could cause us to cancel scheduled sailings, possibly on short notice, or could result in litigation against us. This, in turn, could decrease our revenue, increase our operating costs and otherwise impair our profitability.
Environmental, labor, health and safety, financial responsibility and other maritime regulations and measures could affect operations and increase operating costs.
The U.S. and various state and foreign government or regulatory agencies have enacted or may enact environmental regulations or policies, such as requiring the use of low sulfur fuels (e.g., IMO 2020), that could increase our direct cost to operate in certain markets, increase our cost for fuel, limit the supply of compliant fuel, cause us to incur significant expenses to purchase and/or develop new equipment and adversely impact the cruise vacation industry. While we have taken and expect to
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continue to take a number of actions to mitigate the potential impact of certain of these regulations, there can be no assurances that these efforts will be successful over the long term.
There is increasing global regulatory focus on climate change, greenhouse gas and other emissions. These regulatory efforts, both internationally and in the U.S. are still developing, and we cannot yet determine what the final regulatory programs or their impact will be in any jurisdiction where we do business. However, such climate change-related regulatory activity in the future may adversely affect our business and financial results by requiring us to reduce our emissions, purchase allowances or otherwise pay for our emissions. Such activity may also impact us by increasing our operating costs, including fuel costs.
In addition, we are subject to various international, national, state and local laws, regulations and treaties that govern, among other things, discharge from our ships, safety standards applicable to our ships, treatment of disabled persons, health and sanitary standards applicable to our guests, security standards on board our ships and at the ship/port interface areas, and financial responsibilities to our guests. These issues are, and we believe will continue to be, an area of focus by the relevant authorities throughout the world. This could result in the enactment of more stringent regulation of cruise ships that could subject us to increasing compliance costs in the future.
Some environmental groups also have generated negative publicity about the environmental impact of the cruise vacation industry and are advocating for more stringent regulation of ship emissions at berth and at sea. Growing environmental scrutiny of the cruise industry and any related measures could adversely impact our operations and financial results and subject us to reputational impacts and costs.
A change in our tax status under the U.S. Internal Revenue Code, or other jurisdictions, may have adverse effects on our income.
We and a number of our subsidiaries are foreign corporations that derive income from a U.S. trade or business and/or from sources within the U.S. In connection with the year end audit, each year, Faegre Drinker Biddle & Reath LLP, our U.S. tax counsel, delivers to us an opinion, based on certain representations and assumptions set forth in it, to the effect that this income, to the extent derived from or incidental to the international operation of a ship or ships, is excluded from gross income for U.S. federal income tax purposes pursuant to Section 883 of the Internal Revenue Code. We believe that most of our income (including that of our subsidiaries) is derived from or incidental to the international operation of ships.
Our ability to rely on Section 883 could be challenged or could change in the future. Provisions of the Internal Revenue Code, including Section 883, are subject to legislative change at any time. Moreover, changes could occur in the future with respect to the identity, residence or holdings of our direct or indirect shareholders, trading volume or trading frequency of our shares, or relevant foreign tax laws of Liberia or Bahamas, such that they no longer qualify as equivalent exemption jurisdictions, that could affect our eligibility for the Section 883 exemption. Accordingly, there can be no assurance that we will continue to be exempt from U.S. income tax on U.S. source shipping income in the future. If we were not entitled to the benefit of Section 883, we and our subsidiaries would be subject to U.S. taxation on a portion of the income derived from or incidental to the international operation of our ships, which would reduce our net income.
Additionally, portions of our business are operated by companies that are within the United Kingdom tonnage tax regime. Further, some of our operations are conducted in jurisdictions where we rely on tax treaties to provide exemption from taxation. To the extent the United Kingdom tonnage tax laws change or we do not continue to meet the applicable qualification requirements or if tax treaties are changed or revoked, we may be required to pay higher income tax in these jurisdictions, adversely impacting our results of operations.
As budgetary constraints continue to adversely impact the jurisdictions in which we operate, increases in income tax regulations, tax audits or tax reform affecting our operations may be imposed.
We are not a U.S. corporation and our shareholders may be subject to the uncertainties of a foreign legal system in protecting their interests.
Our corporate affairs are governed by our Articles of Incorporation and By-Laws and by the Business Corporation Act of Liberia. The provisions of the Business Corporation Act of Liberia resemble provisions of the corporation laws of a number of states in the U.S. However, there are very few judicial cases in Liberia interpreting the Business Corporation Act of Liberia. While the Business Corporation Act of Liberia provides that it is to be applied and construed to make the laws of Liberia, with respect of the subject matter of the Business Corporation Act of Liberia, uniform with the laws of the State of Delaware and other states with substantially similar legislative provisions, there have been few Liberian court cases interpreting the Business Corporation Act of Liberia and we cannot predict whether Liberian courts would reach the same conclusions as United States courts. The right of shareholders to bring a derivative action in Liberian courts may be more limited than in U.S. jurisdictions. There may also be practical difficulties for shareholders attempting to bring suit in Liberia and Liberian courts may or may not recognize and enforce foreign judgments. Thus, our public shareholders may have more difficulty in protecting their interests
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with respect to actions by management, directors or controlling shareholders than would shareholders of a corporation incorporated in a U.S. jurisdiction.
General Risk Factors
Conducting business globally may result in increased costs and other risks.
We operate our business globally, which exposes us to a number of risks, including increased exposure to a wider range of regional and local economic conditions, volatile local political conditions, potential changes in duties and taxes, including changing and/or uncertain interpretations of existing tax laws and regulations, required compliance with additional laws and policies affecting cruising, vacation or maritime businesses or governing the operations of foreign-based companies, currency fluctuations, interest rate movements, difficulties in operating under local business environments, port quality and availability in certain regions, U.S. and global anti-bribery laws or regulations, imposition of trade barriers and restrictions on repatriation of earnings.
Our future growth strategies increasingly depend on the growth and sustained profitability of international markets. Factors that will be critical to our success in these markets include our ability to continue to raise awareness of our products and our ability to adapt our offerings to best suit rapidly evolving consumer demands. This risk is further heightened by the COVID-19 pandemic, as authorities in many of these markets have implemented numerous measures to contain the spread and impact of COVID-19, such as travel bans and restrictions, shelter-in-place/stay-at-home orders, and other limitations on business activity, including business closures. In addition, these measures could change unpredictably and/or could be scaled up or down in response to evolving intensity or resurgence of COVID-19 in or around these markets. The execution of our planned growth strategies is dependent on meeting the governmental and regulatory measures and policies in each of these markets. Our ability to realize our future growth strategy is highly dependent on our ability to satisfy country-specific policies and requirements in order to return to service, as well as meeting the needs of region specific consumer preferences as services come back online. These factors may cause us to reevaluate some of our international business strategies.
Operating globally also exposes us to numerous and sometimes conflicting legal, regulatory and tax requirements. In many parts of the world, including countries in which we operate, practices in the local business communities might not conform to international business standards. These legal and regulatory requirements and standards may change in response to the COVID-19 pandemic, and there may be greater uncertainty as to the interpretation and enforcement of applicable laws and regulations, including those introduced in response to the COVID-19 pandemic. We cannot guarantee consistent interpretation, application, and enforcement of rules and regulations put in place in response to the COVID-19 pandemic, which could place limits on our operations or increase our costs, as well as negatively impact our future growth strategies in our key growth markets. We must adhere to policies designed to promote legal and regulatory compliance as well as applicable laws and regulations. However, we might not be successful in ensuring that our employees, agents, representatives and other third parties with whom we associate throughout the world properly adhere to them. In addition, we may be exposed to the risk of penalties and other liabilities if we fail to comply with all applicable legal and regulatory requirements introduced in response to the COVID-19 pandemic, which may be subject to frequent and rapid change. Failure by us, our employees or any of these third parties to adhere to our policies or applicable laws or regulations could result in penalties, sanctions, damage to our reputation and related costs, which in turn could negatively affect our results of operations and cash flows.
As a global operator, our business also may be impacted by changes in U.S. policy or priorities in areas such as trade, immigration (including any continuation of any of the immigration policies put in place by the U.S. government in response to the COVID-19 pandemic) and/or environmental or labor regulations, among others. Depending on the nature and scope of any such changes, they could impact our domestic and international business operations. Any such changes, and any international response to them, could potentially introduce new barriers to passenger or crew travel and/or cross border transactions, impact our guest experience and/or increase our operating costs.
If we are unable to address these risks adequately, our financial position and results of operations could be adversely affected, including impairing the value of our ships and other assets.
Fluctuations in foreign currency exchange rates, fuel prices and interest rates could affect our financial results.
We are exposed to market risk attributable to changes in foreign currency exchange rates, fuel prices and interest rates. Significant changes in any of the foregoing could have a material impact on our financial results, net of the impact of our hedging activities and natural offsets. Our operating results have been and will continue to be impacted, often significantly, by changes in each of these factors. The value of our earnings in foreign currencies is adversely impacted by a strong U.S. dollar. In addition, any significant increase in fuel prices could materially and adversely affect our business as fuel prices not only impact our fuel costs, but also some of our other expenses, such as crew travel, freight, and commodity prices. Mandatory fuel restrictions, may also create uncertainty related to the price and availability of certain fuel types potentially impacting operating
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costs and the value of our related hedging instruments. Also, a significant increase in interest rates could materially impact the cost of our floating rate debt.
The loss of key personnel, our inability to recruit or retain qualified personnel, or disruptions among our shipboard personnel due to strained employee relations could adversely affect our results of operations.
Our success depends, in large part, on the skills and contributions of key executives and other employees, and on our ability to recruit, develop and retain high quality personnel as well as having adequate succession plans and back-up operating plans for when critical executives are unable to serve. As demand for qualified personnel in the industry grows, we must continue to effectively recruit, train, motivate and retain our employees, both shoreside and on our ships, in order to effectively compete in our industry, maintain our current business and support our projected global growth. In addition, we may experience difficulties in recruiting and retaining qualified personnel if we reduce the levels of fixed or variable compensation that we offer (including equity compensation impacted by the trading price of our equity), whether in response to the impacts of COVID-19 or otherwise.
For the quarter ended September 30, 2021, approximately 88% of our shipboard employees were covered by collective bargaining agreements. A dispute under our collective bargaining agreements could result in a work stoppage of those employees covered by the agreements. We may not be able to satisfactorily renegotiate these collective bargaining agreements when they expire. In addition, existing collective bargaining agreements may not prevent a strike or work stoppage on our ships. We may also be subject to or affected by work stoppages unrelated to our business or collective bargaining agreements. Any such work stoppages or potential work stoppages could have a material adverse effect on our financial results, as could a loss of key employees, our inability to recruit or retain qualified personnel or disruptions among our personnel.
If we are unable to keep pace with developments in technology or technological obsolescence, including technology in response to the COVID-19 pandemic, our operations or competitive position could become impaired.
Our business continues to demand the use of sophisticated technology and systems. These technologies and systems require significant investment and must be proven, refined, updated, upgraded and/or replaced with more advanced systems in order to continue to meet our customers’ demands and expectations. If we are unable to do so in a timely manner or within reasonable cost parameters or if we are unable to appropriately and timely train our employees to operate any of these new systems, our business could suffer. We also may not achieve the benefits that we anticipate from any new technology or system, which could result in higher than anticipated costs or impair our operating results.
In response to the COVID-19 pandemic, there has been a search for technology to accurately detect, either directly or indirectly, whether an individual is or has been infected with the virus or has been exposed to someone who is or might be infected. While this technology is in the early stages, as this technology continues to develop we may be faced with decisions regarding what technology to adopt for testing our passengers and employees, and what safety procedures to adopt for future sailings. We may be unable to obtain appropriate technology in a timely manner or at all or we may incur significant costs in doing so. A failure to adopt the appropriate technology, a failure or obsolescence in the technology that we do adopt, or a failure in our safety procedures could adversely affect our results of operations.
We are exposed to cyber security attacks, data breaches and the risks and costs associated with protecting our systems and maintaining data integrity and security.
We are subject to cyber security attacks. These cyber attacks can vary in scope and intent from attacks with the objective of compromising our systems, networks and communications for economic gain to attacks with the objective of disrupting, disabling or otherwise compromising our maritime and/or shoreside operations. The attacks can encompass a wide range of methods and intent, including phishing attacks, illegitimate requests for payment, theft of intellectual property, theft of confidential or non-public information, installation of malware, installation of ransomware and theft of personal or business information. The frequency and sophistication of, and methods used to conduct, these attacks have increased over time.
A successful cyber security attack may target us directly, or it may be the result of a third party’s inadequate care. In either scenario, the Company may suffer damage to its systems and data that could interrupt our operations, adversely impact our reputation and brand and expose us to increased risks of governmental investigation, litigation, fines and other liability, any of which could adversely affect our business. Furthermore, responding to such an attack and mitigating the risk of future attacks could result in additional operating and capital costs in systems technology, personnel, monitoring and other investments.
We are also subject to various risks associated with the collection, handling, storage and transmission of sensitive information. In the regular course of business, we collect employee, customer and other third-party data, including personally identifiable information and individual credit card data, for various business purposes. Although we have policies and procedures in place to safeguard such sensitive information, this information has been and could be subject to cyber security attacks and the aforementioned risks. In addition, we are subject to federal, state and international laws relating to the
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collection, use, retention, security and transfer of personally identifiable information and individual credit card data. Those laws include, among others, the European Union General Data Protection Regulation and regulations of the New York State Department of Financial Services and similar state agencies that impose additional cyber security requirements on us as a result of our provision of certain insurance products. Complying with these and other applicable laws has caused, and may cause, us to incur substantial costs or require us to change our business practices, and our failure to do so may expose us to substantial fines, penalties, restrictions, litigation or other expenses and adversely affect our business. Further, any changes to laws or regulations, including new restrictions or requirements applicable to our business, or an increase in enforcement of existing laws and regulations, could expose us to additional costs and liability and could limit our use and disclosure of such information.
While we continue to evolve our cyber security practices in line with our business’ reliance on technology and the changing external threat landscape, and we invest time, effort and financial resources to secure our systems, networks and communications, our security measures cannot provide absolute assurance that we will be successful in preventing or responding to all cyber security attacks. There can be no assurance that any breach or incident will not have a material impact on our operations and financial results.
Any breach, theft, loss, or fraudulent use of guest, employee, third-party or company data, could adversely impact our reputation and brand and our ability to retain or attract new customers, and expose us to risks of data loss, business disruption, governmental investigation, litigation and other liability, any of which could adversely affect our business. Significant capital investments and other expenditures could be required to remedy the problem and prevent future breaches, including costs associated with additional security technologies, personnel, experts and credit monitoring services for those whose data has been breached. Further, if we or our vendors experience significant data security breaches or fail to detect and appropriately respond to significant data security breaches, we could be exposed to government enforcement actions and private litigation.
Litigation, enforcement actions, fines or penalties could adversely impact our financial condition or results of operations and/or damage our reputation.
Our business is subject to various U.S. and international laws and regulations that could lead to enforcement actions, fines, civil or criminal penalties or the assertion of litigation claims and damages. In addition, improper conduct by our employees, agents or joint venture partners could damage our reputation and/or lead to litigation or legal proceedings that could result in civil or criminal penalties, including substantial monetary fines. In certain circumstances it may not be economical to defend against such matters and/or our legal strategy may not ultimately result in us prevailing in a matter. Such events could lead to an adverse impact on our financial condition or results of operations. In addition, we have experienced, and may continue to experience, increases in litigation pertaining to the COVID-19 crisis, including potential claims for non-refundable cash deposits. We cannot predict the quantum or outcome of any such proceedings and the impact that they will have on our financial results, but any such impact may be material. While some of these claims are covered by insurance, we cannot be certain that all of them will be, which could have an adverse impact on our financial condition or results of operations.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
Share Repurchases
There were no repurchases of common stock during the quarter ended September 30, 2021. As of September 30, 2021, the 24-month common stock repurchase program authorized by our board of directors on May 9, 2018 had expired. In connection with our debt covenant waivers, we agreed with our lenders not to engage in stock repurchases for so long as our debt covenant waivers are in effect.


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Item 6. Exhibits
4.1 
10.1 
10.2 
10.3 
10.4 
10.5 
10.6 
31.1   
     
31.2   
     
32.1   
*   Filed herewith
**   Furnished herewith
Interactive Data File
101                         The following financial statements of Royal Caribbean Cruises Ltd. for the period ended September 30, 2021, formatted in iXBRL (Inline extensible Reporting Language) are filed herewith:
(i)                     the Consolidated Statements of Comprehensive Loss for the quarters and nine months ended September 30, 2021 and 2020;
(ii)    the Consolidated Balance Sheets at September 30, 2021 and December 31, 2020;
(iii)                the Consolidated Statements of Cash Flows for the nine months ended September 30, 2021 and 2020; and
(iv)                   the Notes to the Consolidated Financial Statements, tagged in summary and detail.
104      Cover page interactive data file (the cover page XBRL tags are embedded within the Inline XBRL document).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
  ROYAL CARIBBEAN CRUISES LTD.
  (Registrant)
 
 
  /s/ JASON T. LIBERTY
  Jason T. Liberty
  Executive Vice President, Chief Financial Officer
October 29, 2021 (Principal Financial Officer and duly authorized signatory)

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Exhibit 10.1

Dated 6 July 2021
PALMERAIE FINANCE LIMITED
as Existing Borrower
ROYAL CARIBBEAN CRUISES LTD.
as New Borrower
CITIBANK EUROPE PLC, UK BRANCH
as Facility Agent
CITICORP TRUSTEE COMPANY LIMITED
as Security Trustee
CITIBANK N.A., LONDON BRANCH
as Global Coordinator
HSBC CONTINENTAL EUROPE
as French Coordinating Bank
HSBC CONTINENTAL EUROPE
as ECA Agent
CITIBANK EUROPE PLC, HSBC CONTINENTAL EUROPE, BANCO SANTANDER S.A., BILBAO VIZCAYA ARGENTARIA S.A., PARIS BRANCH, BNP PARIBAS SA, SMBC BANK INTERNATIONAL PLC, SOCIETE GENERALE and UNICREDIT BANK AG
as Mandated Lead Arrangers
and
THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1
as Lenders
AMENDMENT AGREEMENT IN CONNECTION WITH
THE CREDIT AGREEMENT IN RESPECT OF
HULL NO. A35 AT CHANTIERS DE L'ATLANTIQUE S.A.
IMAGE_01A.JPG


Contents
Clause    Page
1    Interpretation and definitions
2
2    Amendment of the Novation Agreement
3
3    Conditions of effectiveness
3
4    Representations and Warranties
5
5    Incorporation of Terms
5
6    Fees, Costs and Expenses
6
7    Counterparts
6
8    Governing Law
7
Schedule 1 Lenders
8
Schedule 2 Form of Amendment Effective Date confirmation – Hull A35
9
Schedule 3 Form of Amended and Restated Novated Credit Agreement
10
Annex A Framework
11
Annex B Debt Deferral Extension Regular Monitoring Requirements
12
Annex C Replacement covenants with effect from the Guarantee Release Date
15
SIGNATORIES
16



THIS AMENDMENT AGREEMENT (this Amendment) is dated     6 July 2021 and made BETWEEN:
(1)    PALMERAIE FINANCE LIMITED as transferor (the Existing Borrower);
(2)    ROYAL CARIBBEAN CRUISES LTD. as transferee (the New Borrower);
(3)    CITIBANK EUROPE PLC, UK BRANCH as facility agent for the other Finance Parties (the Facility Agent);
(4)    CITICORP TRUSTEE COMPANY LIMITED as security trustee for itself and the other Finance Parties (the Security Trustee);
(5)    CITIBANK N.A. LONDON BRANCH as global coordinator (the Global Coordinator);
(6)    HSBC CONTINENTAL EUROPE (previously known as HSBC France) as French coordinating bank (the French Coordinating Bank);
(7)    HSBC CONTINENTAL EUROPE (previously known as HSBC France) as ECA agent (the ECA Agent);
(8)    CITIBANK EUROPE PLC, HSBC CONTINENTAL EUROPE (previously known as HSBC France), BANCO SANTANDER S.A., BANCO BILBAO VIZCAYA ARGENTARIA S.A., PARIS BRANCH, BNP PARIBAS SA, SMBC BANK INTERNATIONAL PLC (previously known as Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch), SOCIÉTÉ GÉNÉRALE and UNICREDIT BANK AG as Mandated Lead Arrangers; and
(9)    THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders.
WHEREAS:
(A)    Reference is made to the facility agreement dated 13 December 2019 (as supplemented, amended and restated from time to time, the Facility Agreement) and made between (1) the Existing Borrower as borrower, (2) the banks and financial institutions named therein as original lenders, (3) the Mandated Lead Arrangers as mandated lead arrangers, (4) the Facility Agent as facility agent, (5) the Security Trustee as security trustee (6) the Global Coordinator as global coordinator, (7) the French Coordinating Bank as French coordinating bank and (8) the ECA Agent as ECA agent, pursuant to which the Lenders have agreed to make available a loan of up to €1,126,400,000 to the Existing Borrower in connection with the purchase by the Existing Borrower of the Receivable from the Seller pursuant to the Receivable Purchase Agreement.
(B)    This Amendment is supplemental to the novation agreement dated 13 December 2019 (as supplemented, amended and restated from time to time, the Novation Agreement) in respect of the financing of the acquisition of the Vessel pursuant to the Facility Agreement and made between, amongst others, (1) the Existing Borrower as the existing borrower, (2) the New Borrower as the new borrower, (3) the banks and financial institutions named therein as original lenders, (4) the Mandated Lead Arrangers as mandated lead arrangers, (5) the Facility Agent as facility agent, (6) the Security Trustee as security trustee, (7) the Global Coordinator as global coordinator, (8) the French Coordinating Bank as French coordinating bank and (9) HSBC Continental Europe as ECA agent.
(C)    The New Borrower has requested that the form of Novated Credit Agreement scheduled to the Novation Agreement (as such Novated Credit Agreement was previously amended and restated pursuant to the Second Novation Agreement Supplement) be amended and restated on the basis set out in this Amendment in order to reflect the Debt Deferral Extension Framework published by certain Export Credit Agencies (including BpiFAE) (the Framework).
(D)    The Parties have agreed to amend the Novation Agreement, and amend and restate the form of Novated Credit Agreement attached to the Novation Agreement, on the basis set out in this Amendment.
    1

NOW IT IS AGREED as follows:
1    Interpretation and definitions
1.1    Definitions in the Facility Agreement and/or the Novation Agreement
(a)    Unless the context otherwise requires or unless otherwise defined in this Amendment, words and expressions defined in the Novation Agreement or the Facility Agreement shall have the same meanings when used in this Amendment (including in the recitals).
(b)    The principles of construction set out in clause 1.3 of the Novation Agreement shall have effect as if set out in this Amendment.
1.2    Definitions
In this Amendment:
Amendment Effective Date means the date specified as such in the certificate signed by the Facility Agent in accordance with clause 3.2.
ECA Financing has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Financial Covenant Waiver Period has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Framework Information Package means the general test scheme/information package in connection with the "Debt Deferral Extension" application submitted by the New Borrower in order to obtain the benefit of the measures provided for in the Framework for the purpose of this Amendment and certain of the New Borrower's obligations to be assumed under the replacement Novated Credit Agreement.
Loan Documents has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Party means each of the parties to this Amendment.
Second Novation Agreement Supplement means the supplemental agreement to the Novation Agreement dated 13 November 2020, entered into between the parties to the Novation Agreement and pursuant to which the Novation Agreement was amended in order to, amongst other things, replace the form of Novated Credit Agreement attached thereto.
1.3    Third party rights
Other than BpiFAE in respect of the rights of BpiFAE under the Finance Document and the Loan Documents, unless expressly provided to the contrary in a Finance Document or a Loan Document, no term of this Amendment is enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.
1.4    Designation
Each of the Parties designates this Amendment as a Loan Document for the purposes of the replacement Novated Credit Agreement and a Finance Document for the purposes of the Facility Agreement.
1.5    Security Trustee
Each of the parties acknowledges that the Security Trustee is entering into this Amendment on the irrevocable and unconditional instructions of the Facility Agent and the Security Trustee shall
    2

have all of the rights, powers and protections conferred on it under the Finance Documents hereunder.
1.6    Initial Expected Delivery Date
Each of the Parties acknowledges that pursuant to addendum no.13 to the Building Contract dated 8 June 2021, the anticipated delivery date of the Vessel under the Building Contract has been delayed until 30 May 2024.
2    Amendment of the Novation Agreement
2.1    In consideration of the mutual covenants in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree that, subject to the satisfaction of the conditions precedent set forth in clause 3:
(a)    the form of the Novated Credit Agreement (but without all its Exhibits which shall, unless otherwise amended and restated pursuant to paragraph (b) below, remain in the same form and continue to form part of the Novated Credit Agreement) set out in Schedule 3 of the Novation Agreement shall be (and it is hereby) amended and restated so as to read in accordance with the form of the amended and restated Novated Credit Agreement set out in Schedule 3; and
(b)    Annex A to Annex C hereto shall be attached to the form of the Novated Credit Agreement as new Exhibit L to Exhibit N thereto.
2.2    It is acknowledged and agreed that as a result of the amendment and restatement of the Novated Credit Agreement pursuant to this Amendment, clause 2.1(b) of the Second Novation Agreement Supplement shall no longer apply and accordingly the form of the replacement Novated Credit Agreement attached to the Second Novation Agreement Supplement shall be disregarded. All other provisions of the Second Novation Agreement Supplement shall continue in full force, and in addition a new clause 6.1(d) shall be inserted into the Novation Agreement as follows:
“(d)    by no later than the date falling 1 month prior to the Actual Delivery Date, the Facility Agent, or its duly authorized representative, shall have received the certificate required to be provided by the New Borrower pursuant to Section 5.1.12 of the Novated Credit Agreement.”
3    Conditions of effectiveness
3.1    The agreement of the Parties referred to in clause 2 shall be subject to each of the following conditions being satisfied to the reasonable satisfaction of the Facility Agent:
(a)        the Facility Agent shall have received from the New Borrower:
(i)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Amendment and as to the truth and completeness of the attached resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Amendment, and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the New Borrower cancelling or amending such prior certificate; and
(ii)        a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the New Borrower;
(b)        the Facility Agent shall have received from the Existing Borrower:
(i)        a certificate from an authorised officer of the Existing Borrower, confirming that there have been no changes or amendments to its constitutional documents, certified
    3

copies of which were previously delivered to the Facility Agent pursuant to the Facility Agreement, or attaching revised versions in case of any changes or amendments; and
(ii)        a copy, certified by an authorised officer of the Existing Borrower, of (A) resolutions of its board of directors approving the transactions contemplated by this Amendment and authorising a person or persons to execute this Amendment and any notices or other documents to be given pursuant hereto and (B) any power of attorney issued pursuant to such resolutions (which shall be certified as being in full force and effect and not revoked or withdrawn);
(c)        the Facility Agent shall have received evidence that all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent) required to be paid by the New Borrower pursuant to clause 6 below, and all other documented fees and expenses that the New Borrower has otherwise agreed in writing to pay to the Facility Agent, have been paid or will be paid promptly upon being demanded;
(d)        an amendment to the BpiFAE Insurance Policy duly signed and issued in respect of the arrangements referred to in this Amendment either (i) in an original with 'wet-ink' signature(s) or (ii) if the execution of an original of the BpiFAE Insurance Policy is not practicable at the relevant time (having regard to the logistical difficulties caused by COVID-19), electronically signed and initialled, together with written confirmation from BpiFAE that (A) such electronic signature is binding upon BpiFAE, (B) BpiFAE will send an original executed 'wet-ink' version of the BpiFAE Insurance Policy to the ECA Agent and the Facility Agent as soon as practicable (again, having regard to the logistical difficulties caused by COVID-19) and (C) such electronically signed BpiFAE Insurance Policy is valid and enforceable irrespective of whether the signed and regularized 'wet-ink' policy has at that time been produced and circulated, and in each case, BpiFAE shall not have, prior to the Effective Date, delivered to the Facility Agent or the ECA Agent any notice seeking the cancellation, suspension or termination of the BpiFAE Insurance Policy;
(e)        the Facility Agent shall have received opinions, addressed to the Facility Agent (and capable of being relied upon by each Lender) from:
(i)        Watson Farley & Williams LLP, counsel to the New Borrower, as to matters of Liberian law (and being issued in substantially the same form as the corresponding Liberian legal opinion issued in respect of the original Novation Agreement);
(ii)    Norton Rose Fulbright LLP, counsel to the Facility Agent as to matters of English law (and being issued in substantially the same form as the corresponding English legal opinion issued in respect of the Second Novation Agreement Supplement);
(iii)        Norton Rose Fulbright LLP, counsel to the Facility Agent as to matters relating to the conformity of the BpiFAE Insurance Policy issued by BpiFAE in accordance with paragraph (e) above with the arrangements relating to the Framework set out in this Amendment and the form of replacement Novated Credit Agreement; and
(iv)        Walkers, legal advisors appointed by the Facility Agent as to matters of Cayman Islands law in respect of the Existing Borrower (and being issued in substantially the same form as the corresponding Cayman legal opinion issued in respect of the Second Novation Agreement Supplement),
or, where applicable, a written approval in principle (which can be given by email) by any of the above counsel of the arrangements contemplated by this Amendment and a confirmation that a formal opinion will follow promptly after the Amendment Effective Date;
(f)    evidence that the New Borrower has submitted the Framework Information Package to BpiFAE (including information related to crisis-related liquidity measures) as a basis for BpiFAE to assess the adequacy of the New Borrower's crisis-related liquidity measures;
    4

(g)        the representations and warranties set out in clause 4 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a Material Adverse Effect (which shall be accurate in all respects)) as of the Amendment Effective Date;
(h)        no Event of Default shall have occurred and be continuing or would result from the amendment of the Novation Agreement pursuant to this Amendment;
(i)        the Existing Borrower and the New Borrower shall, as required pursuant to clause 5, have each provided a letter to the Facility Agent which confirms that the relevant process agent has accepted its appointment as process agent in respect of this Amendment;
(j)        the Facility Agent shall have received a letter from the New Borrower, signed by its Chief Financial Officer, containing a commitment to publish on an annual basis, a publicly available environmental plan that includes (i) an annual measure (in accordance with other public methodology, including IMO methodology) of the greenhouse gas emissions of the New Borrower and its Subsidiaries (including the emissions of their respective vessels) for the two years preceding the date of the relevant publication and (ii) the New Borrower's strategy to reduce the group's greenhouse emissions, including details of specific measures implemented (or to be implemented) in order to achieve such reduction;
(k)        the Facility Agent shall have received from the Existing Borrower and the New Borrower such documentation and information as any Finance Party may reasonably request through the Facility Agent to comply with "know your customer" or similar identification procedures under all laws and regulations applicable to that Finance Party; and
(l)        the Facility Agent shall have received evidence that, as required pursuant to clause 9.6(c) of the Receivable Purchase Agreement, the Seller has consented to the amendments to the Novation Agreement set out in this Amendment,
it being acknowledged and agreed by the Facility Agent that the conditions referred to in paragraphs (f), (i), (k) and (l) above have, at the date of this Amendment, been satisfied.
3.2    The Facility Agent shall notify the Lenders, the Existing Borrower and the New Borrower of the Amendment Effective Date by way of a confirmation in the form set out in Schedule 2 and such confirmation shall be conclusive and binding.
4    Representations and Warranties
4.1    The Existing Borrower shall be deemed to repeat the representations and warranties in clause 7.1 of the Facility Agreement on the date of this Amendment and the Amendment Effective Date, in each case, as if made with reference to the facts and circumstances existing on such dates.
4.2    The New Borrower represents and warrants that each of the representations set out in Article VI of the form of the replacement Novated Credit Agreement (other than Section 6.10) set out in Schedule 3 are true and correct as if made at the date of this Amendment and at the Amendment Effective Date, in each case with reference to the facts and circumstances existing on such day, as if references to the Loan Documents include this Amendment and as if the replacement Novated Credit Agreement was effective at the time of each such repetition.
4.3    In addition to the representations and warranties referred to in clause 4.2 above, the New Borrower:
(a)    represents and warrants to the Facility Agent and each Lender that it is the New Borrower’s intention for the terms of this Amendment and the amendments to be incorporated into the form of the amended and restated Novated Credit Agreement pursuant to this Amendment to be substantially the same terms and amendments as those set out or to be set out in an
    5

amendment agreement in respect of each other ECA Financing in existence as at the date of this Amendment;
(b)    covenants and undertakes with the Facility Agent that (to the extent it has not already done so) it shall, on or before the Amendment Effective Date, or as soon as reasonably practicable thereafter enter into an amendment agreement (with such amendments being on substantially the same terms as those set out in this Amendment and the form of the amended and restated Novated Credit Agreement (as applicable)) to the finance documents in respect of each other ECA Financing in existence as at the date of this Amendment in order to substantially reflect the amendments set out in the form of the Amended Novated Agreement provided, however, that this paragraph (b) shall not apply in respect of any other ECA Financing where the lenders under that ECA Financing do not provide their consent to such amendment agreement where the arrangements contemplated by that amendment were proposed to be on substantially the same basis as set out in this Amendment (subject to logical and factual changes),
save that such other amendments shall in each case incorporate changes to reflect (i) any factual differences, (ii) that certain of the other ECA Financings shall contain provisions providing for the deferral of principal repayments to be made by the New Borrower under those ECA Financings in accordance with the Framework and (iii) any particular requirements of an ECA Guarantor, under that relevant ECA Financing.
5    Incorporation of Terms
The provisions of clauses 13 (Miscellaneous and notices), 14.2 (Submission to jurisdiction) and 14.3 (Waiver of immunity) of the Novation Agreement shall be incorporated into this Amendment as if set out in full in this Amendment and as if (a) references to each Party are references to each Party to this Amendment and (b) references to 'this Agreement' include this Amendment.
6    Fees, Costs and Expenses
The New Borrower agrees to pay on demand, on an after-tax basis, all reasonable out-of-pocket costs and expenses in connection with:
(a)    the preparation, execution and delivery of; and
(b)    the administration, modification and amendment of,
this Amendment and all other documents to be delivered hereunder or thereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of Norton Rose Fulbright LLP as the legal adviser to the Lenders and the Facility Agent and the Security Trustee.
7    Counterparts
This Amendment may be executed in any number of counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original but all counterparts shall together constitute one and the same instrument. The Parties acknowledge and agree that they may execute this Amendment and any variation or amendment to the same, by electronic instrument. The Parties agree that the electronic signatures appearing on the document shall have the same effect as handwritten signatures and the use of an electronic signature on this Amendment shall have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating this Amendment, and evidencing the Parties' intention to be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests including contract management.

    6

8    Governing Law
This Amendment, and all non-contractual obligations arising in connection with it, shall be governed by and construed in accordance with English law.
The Parties have executed this Amendment the day and year first before written.
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Schedule 1
Lenders
Citibank Europe plc
HSBC Continental Europe
Banco Santander, S.A.
Banco Bilbao Vizcaya Argentaria, S.A., Paris Branch
BNP Paribas SA
SMBC Bank International plc
Société Générale
Unicredit Bank AG
SFIL

    

Schedule 2
[OMITTED]

    

Schedule 3
Form of Amended and Restated Novated Credit Agreement

    


_________________________________________
HULL NO. A35 CREDIT AGREEMENT
_________________________________________
dated 13 December 2019 as novated, amended and restated
on the Actual Delivery Date pursuant to
a novation agreement dated 13 December 2019
(as amended and restated by a first novation agreement supplement dated 29 August 2020, as further amended and restated by a second novation agreement supplement dated 13 November 2020 and as further amended and restated by a third novation agreement supplement dated 6 July 2021)
BETWEEN
Royal Caribbean Cruises Ltd.
as the Borrower,
the Lenders from time to time party hereto,
Citibank N.A., London Branch
as Global Coordinator
HSBC Continental Europe as ECA Agent
and
Citibank Europe plc, UK Branch as Facility Agent
and
Citibank Europe plc, HSBC Continental Europe, Banco Santander S.A., Banco Bilbao Vizcaya Argentaria S.A., Paris Branch, BNP Paribas SA, SMBC Bank International plc, Société Générale and Unicredit Bank AG as Mandated Lead Arrangers





TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms    2
SECTION 1.2. Use of Defined Terms    28
SECTION 1.3. Cross-References    28
SECTION 1.4. Accounting and Financial Determinations    28
ARTICLE II COMMITMENTS AND BORROWING PROCEDURES
SECTION 2.1. Commitment    29
SECTION 2.2. Commitment of the Lenders; Termination and Reduction of Commitments    29
SECTION 2.3. Borrowing Procedure    29
SECTION 2.4. Funding    32
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments    32
SECTION 3.2. Prepayment    32
SECTION 3.3. Interest Provisions    33
SECTION 3.3.1. Rates    33
SECTION 3.3.2. [Intentionally omitted]    34
SECTION 3.3.3. Interest stabilisation    34
SECTION 3.3.4. Post-Maturity Rates    34
SECTION 3.3.5. Payment Dates    34
SECTION 3.3.6. Interest Rate Determinations; Replacement Reference Banks    34
SECTION 3.3.7. Unavailability of LIBO    35
SECTION 3.4. Commitment Fees    36
SECTION 3.4.1. Payment    37




SECTION 3.5. Other Fees    37
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful    37
SECTION 4.2. Deposits Unavailable    37
SECTION 4.3. Increased LIBO Rate Loan Costs, etc.    38
SECTION 4.4. Funding Losses    40
SECTION 4.4.1. Indemnity    40
SECTION 4.4.2. Exclusion    41
SECTION 4.5. Increased Capital Costs    41
SECTION 4.6. Taxes    42
SECTION 4.7. Reserve Costs    44
SECTION 4.8. Payments, Computations, etc.    45
SECTION 4.9. Replacement Lenders, etc.    46
SECTION 4.10. Sharing of Payments    46
SECTION 4.10.1. Payments to Lenders    46
SECTION 4.10.2. Redistribution of payments    47
SECTION 4.10.3. Recovering Lender's rights    47
SECTION 4.10.4. Reversal of redistribution    47
SECTION 4.10.5. Exceptions    47
SECTION 4.11. Set-off    48
SECTION 4.12. Use of Proceeds    48
SECTION 4.13. FATCA Information    48
SECTION 4.14. Resignation of the Facility Agent    49
ARTICLE V CONDITIONS TO BORROWING
SECTION 5.1. Advance of the Loan    49
SECTION 5.1.1. Resolutions, etc.    50
SECTION 5.1.2. Opinions of Counsel    50


SECTION 5.1.3. BpiFAE Insurance Policy    50
SECTION 5.1.4. Closing Fees, Expenses, etc.    50
SECTION 5.1.5. Compliance with Warranties, No Default, etc.    51
SECTION 5.1.6. Loan Request    51
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations    51
SECTION 5.1.8. Protocol of delivery    51
SECTION 5.1.9. Title to Purchased Vessel    52
SECTION 5.1.10. Interest Stabilisation    52
SECTION 5.1.11. Escrow Account Security    53
ARTICLE VI REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Organization, etc.    53
SECTION 6.2. Due Authorization, Non-Contravention, etc.    53
SECTION 6.3. Government Approval, Regulation, etc.    54
SECTION 6.4. Compliance with Environmental Laws    54
SECTION 6.5. Validity, etc.    54
SECTION 6.6. No Default, Event of Default or Prepayment Event    54
SECTION 6.7. Litigation    54
SECTION 6.8. The Purchased Vessel    55
SECTION 6.9. Obligations rank pari passu; Liens    55
SECTION 6.10. Withholding, etc.    55
SECTION 6.11. No Filing, etc. Required    55
SECTION 6.12. No Immunity    55
SECTION 6.13. Investment Company Act    56
SECTION 6.14. Regulation U    56
SECTION 6.15. Accuracy of Information    56
SECTION 6.16. Compliance with Laws    56


ARTICLE VII COVENANTS
SECTION 7.1. Affirmative Covenants    57
SECTION 7.1.1. Financial Information, Reports, Notices, etc.    57
SECTION 7.1.2. Approvals and Other Consents    59
SECTION 7.1.3. Compliance with Laws, etc.    59
SECTION 7.1.4. The Purchased Vessel    60
SECTION 7.1.5. Insurance    61
SECTION 7.1.6. Books and Records    61
SECTION 7.1.7. BpiFAE Insurance Policy/French Authority Requirements    61
SECTION 7.1.8. Further Assurances in respect of the Framework    62
SECTION 7.1.9. Equal Treatment with Pari Passu Creditors    62
SECTION 7.1.10. Performance of shipbuilding contract obligations    63
SECTION 7.2. Negative Covenants    63
SECTION 7.2.1. Business Activities    63
SECTION 7.2.2. Indebtedness    63
SECTION 7.2.3. Liens    64
SECTION 7.2.4. Financial Condition    66
SECTION 7.2.5. Additional Undertakings.    67
SECTION 7.2.6. Consolidation, Merger, etc.    75
SECTION 7.2.7. Asset Dispositions, etc.    76
SECTION 7.2.9. Framework Lien and Guarantee Restriction    76
SECTION 7.3. Covenant Replacement    78
SECTION 7.4. Lender incorporated in the Federal Republic of Germany    78
ARTICLE VIII EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default    78
SECTION 8.1.1. Non-Payment of Obligations    78


SECTION 8.1.2. Breach of Warranty    78
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations    78
SECTION 8.1.4. Default on Other Indebtedness    79
SECTION 8.1.5. Bankruptcy, Insolvency, etc.    80
SECTION 8.2. Action if Bankruptcy    80
SECTION 8.3. Action if Other Event of Default    80
ARTICLE IX PREPAYMENT EVENTS
SECTION 9.1. Listing of Prepayment Events    81
SECTION 9.1.1. Change of Control    81
SECTION 9.1.2. Unenforceability    81
SECTION 9.1.3. Approvals    81
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations    81
SECTION 9.1.5. Judgments    82
SECTION 9.1.6. Condemnation, etc.    82
SECTION 9.1.7. Arrest    82
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel    82
SECTION 9.1.9. BpiFAE Insurance Policy    82
SECTION 9.1.10. Illegality    82
SECTION 9.1.11. Framework Prohibited Events    82
SECTION 9.1.12. Breach of Principles and Framework    83
SECTION 9.2. Mandatory Prepayment    83
SECTION 9.3. Mitigation    84
ARTICLE X THE FACILITY AGENT AND THE ECA AGENT
SECTION 10.1. Actions    84
SECTION 10.2. Indemnity    84
SECTION 10.3. Funding Reliance, etc.    85
SECTION 10.4. Exculpation    87


SECTION 10.5. Successor    87
SECTION 10.6. Loans by the Facility Agent    88
SECTION 10.7. Credit Decisions    89
SECTION 10.8. Copies, etc.    89
SECTION 10.9. The Agents’ Rights    89
SECTION 10.10. The Facility Agent’s Duties    89
SECTION 10.11. Employment of Agents    90
SECTION 10.12. Distribution of Payments    90
SECTION 10.13. Reimbursement    90
SECTION 10.14. Instructions    91
SECTION 10.15. Payments    91
SECTION 10.16. “Know your customer” Checks    91
SECTION 10.17. No Fiduciary Relationship    91
SECTION 10.18. Illegality    91
ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc.    91
SECTION 11.2. Notices    93
SECTION 11.3. Payment of Costs and Expenses    94
SECTION 11.4. Indemnification    94
SECTION 11.5. Survival    96
SECTION 11.6. Severability    96
SECTION 11.7. Headings    96
SECTION 11.8. Execution in Counterparts, Effectiveness, etc.    96
SECTION 11.9. Third Party Rights    96
SECTION 11.10. Successors and Assigns    96
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan    97
SECTION 11.11.1. Assignments    97

SECTION 11.11.2. Participations    99
SECTION 11.11.3. Register    100
SECTION 11.11.4. Rights of BpiFAE to payments    100
SECTION 11.12. Other Transactions    100
SECTION 11.13. BpiFAE Insurance Policy    100
SECTION 11.13.1. Terms of BpiFAE Insurance Policy    100
SECTION 11.13.2. Obligations of the Borrower    101
SECTION 11.13.3. Obligations of the ECA Agent and the Lenders    101
SECTION 11.14. Law and Jurisdiction    102
SECTION 11.14.1. Governing Law    102
SECTION 11.14.2. Jurisdiction    102
SECTION 11.14.3. Alternative Jurisdiction    102
SECTION 11.14.4. Service of Process    102
SECTION 11.15. Confidentiality    103
SECTION 11.16. French Authority Requirements    104
SECTION 11.17. Waiver of immunity    104
SECTION 11.18. Acknowledgement and Consent to Bail-In of EEA Financial
Institutions    104



EXHIBITS
Exhibit A    -    Form of Loan Request
Exhibit B-1    -    Form of Opinion of Liberian Counsel to Borrower
Exhibit B-2    -    Form of Opinion of English Counsel to the Facility Agent and the Lenders
Exhibit B-3    -    Form of Opinion of French Counsel to the Facility Agent and the Lenders
Exhibit B-4    -    Form of Opinion of US Tax Counsel to the Lenders
Exhibit C    -    Form of Lender Assignment Agreement
Exhibit D    -    Form of Certificate of French Content
Exhibit E-1    -    Form of Delivery Non-Yard Costs Certificate
Exhibit E-2     -    Form of Final Non-Yard Costs Certificate
Exhibit F     -    Silversea Indebtedness and Liens
Exhibit G    -    Form of First Priority Guarantee
Exhibit H    -    Form of Second Priority Guarantee
Exhibit I    -    Form of Third Priority Guarantee
Exhibit J    -    Form of Senior Parties Subordination Agreement
Exhibit K    -    Form of Other Senior Parties Subordination Agreement
Exhibit L    -    Framework
Exhibit M    -    Debt Deferral Extension Regular Monitoring Requirements
Exhibit N    -    Replacement covenants with effect from the Guarantee Release Date


CREDIT AGREEMENT
HULL NO. A35 CREDIT AGREEMENT, dated 13 December 2019 as novated, amended and restated on the Actual Delivery Date (as defined below) and as amended by a first novation agreement supplement dated 29 August 2020, as further amended and restated by a second novation agreement supplement dated 13 November 2020 and as further amended and restated by a third novation agreement supplement dated 6 July 2021, is among Royal Caribbean Cruises Ltd., a Liberian corporation (the “Borrower”), HSBC Continental Europe in its capacity as agent for the Lenders referred to below in respect of BpiFAE-related matters (in such capacity, the “ECA Agent”), Citibank Europe plc, UK Branch in its capacity as facility agent (in such capacity, the “Facility Agent”) and the financial institutions listed in Schedule 1 to the Novation Agreement (as defined below) as lenders (in such capacity, together with each of the other Persons that shall become a “Lender” in accordance with clause 12 of the Novation Agreement or Section 11.11.1 hereof, each of them individually a “Lender” and, collectively, the “Lenders”).
W I T N E S S E T H:
WHEREAS,
(A)    The Borrower and Chantiers de l’Atlantique S.A. (previously known as STX France S.A.) (the “Builder”) have entered on 30 September 2016 into a Contract for the Construction and Sale of Hull No. A35 (as amended from time to time, including, as at the date of this Agreement, by way of addenda respectively numbered 1 to 7, the “Construction Contract”) pursuant to which the Builder has agreed to design , construct, equip, complete, sell and deliver the passenger cruise vessel bearing Builder’s hull number A35 and which shall be owned by the Nominated Owner (the “Purchased Vessel”).
(B)    The Lenders have agreed to make available to the Borrower, upon the terms and conditions contained herein, a US dollar loan facility calculated on the amount (the “Maximum Loan Amount”) equal to the EUR sum of:
(i)    eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel, and including Non-Yard Costs of up to EUR 120,000,000 (the “Maximum Non-Yard Costs Amount”), and the Other Basic Contract Price Increases (as defined below) for the Purchased Vessel of up to EUR 30,500,000, and all of which amounts shall not exceed in aggregate EUR 1,430,500,000;
(ii)    eighty per cent (80%) of the change orders of up to EUR 128,000,000 effected in accordance with the Construction Contract; and
(iii)    100% of the BpiFAE Premium (as defined below),
    being an amount no greater than EUR 1,284,204,000 and being made available in the US Dollar Equivalent of that Maximum Loan Amount (as such Dollar amount may be adjusted pursuant to clause 5.3 of the Novation Agreement).
(C)    Of the amounts referred to in recital (B)(i) and (ii) above, the Lenders have made certain amounts available to the Original Borrower during the period prior to the
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Actual Delivery Date pursuant to this Agreement (the liability for which amount has been assumed by the Borrower following the novation of this Agreement pursuant to the Novation Agreement) and, in relation to the amount referred to in recital (B)(i), the balance has been or shall be made available to the Borrower as an Additional Advance pursuant to the Novation Agreement and this Agreement.
(D)    The Parties have previously amended this Agreement pursuant to the Second Novation Agreement Supplement (as defined below) in connection with the provision of the Guarantees (as defined below).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall, when capitalized, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):
“Accumulated Other Comprehensive Income (Loss)” means at any date the Borrower’s accumulated other comprehensive income (loss) on such date, determined in accordance with GAAP.
“Actual Delivery Date” means the date on which the Purchased Vessel is delivered by the Builder to, and accepted by, the Borrower under the Construction Contract, being also the date on which the final balance of the Loan is advanced by way of the Additional Advances.
“Additional Advances” is defined in the Novation Agreement.
“Additional Guarantee” means a guarantee of the Obligations provided by a New Guarantor in a form and substance substantially the same as the other Guarantees (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and acceptable to BpiFAE.
“Additional Subordination Agreement” means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee, as applicable, in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and the beneficiaries of any Indebtedness incurred by the relevant Guarantor, as applicable, and acceptable to BpiFAE.
“Adjustable Amount” means, as of any time of determination, $500,000,000; provided if the aggregate amount of New Capital is equal to or greater than $500,000,000, then the Adjustable Amount shall be $350,000,000.
“Adjusted Cash Balance” means, as of any date (the “Measurement Date”), the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP plus (a) any amounts available to be drawn by the Borrower and/or any of its Subsidiaries under committed but undrawn term loan
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or revolving credit facility agreements (excluding any amounts available under agreements where the proceeds are only intended to be used to fund the purchase of new Vessels) and less (b) the sum of (i) any scheduled payments of principal or interest (but for the purposes of anticipating any interest liabilities, the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the Measurement Date) in respect of debt during the period commencing on the Measurement Date and ending on the date that is six months thereafter, (ii) any customer deposits held by the Borrower or its Subsidiaries for cruises that are scheduled to commence within three months of the Measurement Date and (iii) any planned Non-Financed Capex during the period commencing on the Measurement Date and ending on the date that is six months thereafter.
“Adjusted EBITDA After Principal and Interest” means, for any Last Reported Fiscal Quarter, the Borrower’s EBITDA After Principal and Interest for such period, excluding those items, if any, that the Borrower has excluded in determining “Adjusted Net Income” for such period as disclosed in the Borrower’s annual report on 10-K or quarterly report on 10-Q, as applicable, for such Last Reported Fiscal Quarter, as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
“Affiliate” of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or indirectly, power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
“Agent” means either the ECA Agent or the Facility Agent and “Agents” means both of them.
“Agreement” means, on any date, this credit agreement as originally in effect on the Signing Date and as novated, amended and restated by the Novation Agreement and as thereafter from time to time amended, supplemented, amended and restated, or otherwise modified and in effect on such date.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.
“Anticipated Delivery Date” means the Expected Delivery Date (as defined in the Receivable Purchase Agreement) as at the Signing Date, namely 16 November 2023.
“Annex VI” means Annex VI of the Protocol of 1997 (as subsequently amended from time to time) to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol), as modified by the Protocol of 1978 relating thereto.
“Applicable Commitment Rate” means (x) from the Signing Date up to and including the date falling two years prior to the Anticipated Delivery Date, 0.15% per annum, (y) from the day following the date falling two years prior to the Anticipated Delivery Date up to and including the date falling one year prior to the Anticipated Delivery Date, 0.25% per annum, and (z) from the day following the date falling one year prior to the Anticipated Delivery Date until the Commitment Fee Termination Date, 0.30% per annum.

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“Applicable Jurisdiction” means the jurisdiction or jurisdictions under which the Borrower is organized, domiciled or resident or from which any of its business activities are conducted or in which any of its properties are located and which has jurisdiction over the subject matter being addressed.
“Approved Appraiser” means any of the following: Barry Rogliano Salles, Paris, H Clarkson & Co. Ltd., London, R.S. Platou Shipbrokers, Norway, or Fearnley AS, Norway.
“Assignee Lender” is defined in Section 11.11.1.
“Authorized Officer” means those officers of the Borrower authorized to act with respect to the Loan Documents and whose signatures and incumbency shall have been certified to the Facility Agent by the Secretary or an Assistant Secretary of the Borrower.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule; and (b) in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation
“Bank Indebtedness” means the Borrower’s Indebtedness up to a maximum aggregate principal amount of $5,300,000,000 under the following agreements (as amended, restated, supplemented, extended, refinanced, replaced or otherwise modified from time to time): (a) the USD1,550,000,000 revolving credit facility maturing in 2022 with Nordea Bank AB (publ), New York Branch as agent, (b) the USD1,925,000,000 revolving credit facility maturing in 2024 with The Bank of Nova Scotia as agent, (c) the USD1,000,000,000 term loan maturing on 5 April 2022 with Bank of America, N.A. as agent, (d) the USD300,000,000 term loan maturing on 7 June 2028 with Nordea Bank ABP, New York Branch as agent, (e) the USD55,827,065 term loan maturing on 5 December 2022 with Sumitomo Mitsui Banking Corporation as agent, (f) the €80,000,000 term loan maturing in November 2024 with Skandinaviska Enskilda Banken AB (publ) as agent, (g) the USD130,000,000 term loan maturing on 2 February 2023 with Industrial and Commercial Bank of China Limited, New York Branch as agent, (h) that certain guarantee dated 18 July 2016 with SMBC Leasing and Finance, Inc. as agent in connection with liabilities relating to the “Lease”, the “Construction Agency Agreement”, the “Participation Agreement” and any other “Operative Document” (as each term is defined in such guarantee) and (i) any other agreement (other than in connection with Credit Card Obligations) as to which the Second Priority Guarantors provide a first priority guarantee package.
“Bank of Nova Scotia Agreement” means the U.S. $1,925,000,000 amended and restated credit agreement dated as of 4 December 2017 among the Borrower, as borrower, the various financial institutions as are or shall become parties thereto, as lenders, and The Bank of Nova Scotia, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
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“Basic Contract Price” is as defined in the Construction Contract.
“Borrower” is defined in the preamble.
“BpiFAE” means BpiFrance Assurance Export, the French export credit agency, a French société par action simplifiée à associé unique with its registered office at 27-31, avenue du Général Leclerc, 94710 Maisons-Alfort Cedex, France, registered at the trade and companies registry of Créteil under number 815 276 308 and includes its successors in title or any other person succeeding to BpiFrance Assurance Export in the role as export credit agency of the Republic of France to manage and provide under its control, on its behalf and in its name the public export guarantees as provided by article L 432-1 of the French insurance code.
“BpiFAE Enhanced Guarantee” means the enhanced guarantee (garantie rehaussée) issued or to be issued by BpiFAE to the benefit of CAFFIL in accordance with article 84 of the French Amending Finance Law 2012 (as amended) in relation to the refinancing of SFIL’s participation and Commitments under the Loan, and any other documents (including any security) entered into or to be entered into by SFIL with CAFFIL and/or BpiFAE in relation thereto.
“BpiFAE Insurance Policy” means the export credit insurance policy in respect of the Loan issued by BpiFAE for the benefit of the Lenders.
“BpiFAE Premium” means the premium payable to BpiFAE under and in respect of the BpiFAE Insurance Policy.
“Builder” is defined in the preamble.
“Business Day” means any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York City, London, Madrid or Paris and if the applicable Business Day relates to an advance of all or part of the Loan, an Interest Period, prepayment or conversion, in each case with respect to the Loan bearing interest by reference to the LIBO Rate, a day on which dealings in deposits in Dollars are carried on in the London interbank market.
“B34 Facility Amendment Date” means 20 March 2018, the effective date of the third supplemental agreement dated 16 March 2018 to (among other things) a credit facility supported by BpiFAE (pertaining to Hull No. B34) reflecting the alignment of certain provisions and covenants with the Borrower’s revolving credit facility refinanced on 12 October 2017.
“CAFFIL” means Caisse Française de Financement Local, a French société anonyme, with its registered office at 1-3 rue du Passeur de Boulogne, 92130 Issy-les-Moulineaux, France, registered at the trade and companies registry of Nanterre under number 421 318 064.
“Capital Lease Obligations” means obligations of the Borrower or any Subsidiary of the Borrower under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases.
“Capitalization” means, at any date, the sum of (a) Net Debt on such date, plus (b) Stockholders’ Equity on such date.

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“Capitalized Lease Liabilities” means the principal portion of all monetary obligations of the Borrower or any of its Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases, and, for purposes of this Agreement and each other Loan Document, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
“Cash Equivalents” means all amounts other than cash that are included in the “cash and cash equivalents” shown on the Borrower’s balance sheet prepared in accordance with GAAP.
“Change of Control” means an event or series of events by which (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 50% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.
“Commitment” is defined in Section 2.2 and means, relative to any Lender, such Lender’s obligation to make the Loan pursuant to Section 2.1.
“Commitment Fees” is defined in Section 3.4.
“Commitment Fee Termination Date” is defined in Section 3.4.
“Commitment Termination Date” means the Back Stop Date (as defined in the Receivable Purchase Agreement) (or such later date as the Lenders and BpiFAE may agree).
“Construction Contract” is defined in the preamble.
“Contract Price” is as defined in the Construction Contract and which includes a lump sum amount in respect of the Non-Yard Costs.
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“Contractual Delivery Date” means, at any time, the date which at such time is the date specified for delivery of the Purchased Vessel under the Construction Contract, as such date may be modified from time to time pursuant to the terms of the Construction Contract.
“Covenant Modification Date” means the later to occur of (a) the expiry of the Financial Covenant Waiver Period and (b) the date upon which the financial covenants set out in Section 7.2.4 have been modified in this Agreement in a form and substance satisfactory to BpiFAE, the Borrower and the Lenders.
“Covered Taxes” is defined in Section 4.6.
“Credit Card Obligations” means any obligations of the Borrower under credit card processing arrangements or other similar payment processing arrangements entered into in the ordinary course of business of the Borrower.
“DDTL Indebtedness” means the Borrower’s Indebtedness (or, if such Indebtedness has not yet been incurred, the commitments by lenders to provide Indebtedness to the Borrower as of the effectiveness of the Second Novation Agreement Supplement) in connection with that certain Commitment Letter, dated as of August 12, 2020, between the Borrower and MORGAN STANLEY SENIOR FUNDING INC. (as amended, restated, extended, supplemented, refinanced, replaced or otherwise modified from time to time).
“Debt Deferral Extension Regular Monitoring Requirements" means the general test scheme/reporting package in the form set out in Exhibit M to this Agreement submitted or to be submitted (as the case may be) by the Borrower in accordance with Section 7.1.1(i).
“Debt Incurrence” means any incurrence of Indebtedness for borrowed money by any Group Member, whether pursuant to a public offering or a Rule 144A or other private placement of debt securities (including any secured debt securities (but excluding any unsecured debt securities) convertible into equity securities) or an incurrence of loans under any loan or credit facility, or any issuance of bonds, other than:
(a)    any Indebtedness (but having regard, in respect of any secured and/or guaranteed Indebtedness, to the restrictions set out in Section 7.2.9(b)) incurred by a Group Member between 1 April 2020 and the earlier of (i) the end of the Early Warning Monitoring Period and (ii) 31 December 2023 (or such later date as may, with the prior consent of BpiFAE, be agreed between the Borrower and the Lenders) (the “Debt Incurrence Trigger Date”);
(b)    Indebtedness incurred by a Group Member pursuant to an intra-Group loan from another Group Member, provided that no Group Member shall be permitted to incur any such Indebtedness at any time where an Event of Default or a Prepayment Event has occurred and is continuing;
(c)    Indebtedness incurred to refinance (and for this purpose having regard to the applicable provisions of Section 7.2.9) a maturity payment under any existing loan or credit facility (including any crisis and/or recovery-related Indebtedness incurred by a Group Member prior to the Debt Incurrence Trigger Date) or issued bonds of a Group Member, provided that;

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(i)    in the case of any such refinancing, the amount of such Indebtedness being used in connection with that refinancing does not increase the aggregate principal amount of such Indebtedness or the commitments outstanding at the time of that refinancing and is otherwise incurred on a basis permitted pursuant to this Agreement (including, without limitation, in relation to the provision of any Liens or guarantees that may be provided to support the relevant refinancing arrangement); and
(ii)    in the case of the refinancing of crisis and/or recovery-related Indebtedness of the type referred to above, that refinancing shall either (A) reduce the interest burden of the Borrower (and for such purposes the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the time of the new debt incurrence) or (B) replace the existing secured and/or guaranteed Indebtedness with unsecured and unguaranteed debt;
(d)    Indebtedness provided by banks or other financial institutions under the Borrower’s senior unsecured revolving credit facilities in an aggregate amount not greater than the commitments thereunder as in effect on 19 February 2021 plus the amount of any existing uncommitted incremental facilities (i.e. any unused accordion) on such facilities;
(e)    Indebtedness provided by banks or other financial institutions which, as at 19 February 2021, is committed but yet to be incurred in respect of the DDTL Indebtedness (but, in respect of that DDTL Indebtedness, up to a maximum amount of $700,000,000);
(f)    any of the following types of indebtedness in each case incurred in the ordinary course of business of any Group Member and with the prior written consent of BpiFAE:
(i)    the issuances of commercial paper;
(ii)    Capitalized Lease Liabilities;
(iii)    purchase money indebtedness;
(iv)    indebtedness under overdraft facilities; and
(v)    financial obligations in connection with repurchase agreements and/or securities lending arrangements; and
(g)    vessel financings (including the financing of pre-delivery contract installments, change orders, owner furnished equipment costs or other such similar arrangements) in respect of vessels for which shipbuilding contracts have been executed on or prior to 28 April 2020 (provided, however, that a refinancing of a vessel financing shall not be included in this carve-out (g)).
“Default” means any Event of Default or any condition, occurrence or event which, after notice or lapse of time or both, would constitute an Event of Default.
“Delivery Non-Yard Costs Certificate” means the certificate to be provided to the Facility Agent in the form of Exhibit E-1 on or prior to the Actual Delivery Date certifying the
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amount in EUR of the Paid Non-Yard Costs and the Unpaid Non-Yard Costs as at the Actual Delivery Date, duly signed by the Borrower and endorsed by the Builder.
“Dispose” means to sell, transfer, license, lease, distribute or otherwise transfer, and “Disposition” shall have a correlative meaning.
"Disruption Event" means either or both of:
(a)    a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Loan Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties; or
(b)    the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a party preventing that, or any other, party:
(i)    from performing its payment obligations under the Loan Documents; or
(ii)    from communicating with other parties or in accordance with the terms of the Loan Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party whose operations are disrupted.
“Dollar” and the sign “$” mean lawful money of the United States.
“Early Warning Monitoring Period” means the period beginning on the Novation Effective Time and ending on the last day of two consecutive Fiscal Quarters in which the Borrower has achieved a higher Adjusted EBITDA After Principal and Interest for such Fiscal Quarters when compared with the same calculation for the corresponding Fiscal Quarters of the 2019 Fiscal Year, as evidenced pursuant to the certificate to be submitted by the Borrower pursuant to Section 7.1.1(l) (and such date shall be notified to the Borrower by the Facility Agent).
“EBITDA After Principal and Interest” means, for any Last Reported Fiscal Quarter, the Borrower’s consolidated operating income for such period plus any depreciation and amortization expenses that were deducted in calculating consolidated operating income for such period and minus (a) any scheduled amortization or maturity payments made during such period and (b) consolidated interest expense of the Borrower for such period (net of any capitalized interest and interest income), in each relevant case as determined in accordance with GAAP.
“ECA Agent” is defined in the preamble.
“ECA Financed Vessel” means any Vessel subject to any ECA Financing.
“ECA Financing” means any financing arrangement pursuant to which one or more ECA Guarantor provides guarantees or other credit support (including but not limited to a sale and leaseback transaction or bareboat charter or lease or an arrangement whereby a Vessel under construction is pledged as collateral to secure the indebtedness of a shipbuilder, and, for
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the avoidance of doubt, committed but undrawn export credit agency facilities), entered into by the Borrower or a Subsidiary for the purpose of financing or refinancing all or any part of the purchase price, cost of design or construction of a Vessel or Vessels or the acquisition of Equity Interests of entities owning, or to own, Vessels.
“ECA Guarantor” means BpiFrance Assurance Export, Finnvera plc or Euler Hermes Aktiengesellschaft (or, in each case, any successor thereof).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of a Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“Effective Date” means the date this Agreement becomes effective pursuant to Section 11.8.
“Effective Time” means the Novation Effective Time as defined in the Novation Agreement.
“Environmental Laws” means all applicable federal, state, local or foreign statutes, laws, ordinances, codes, rules and regulations (including consent decrees and administrative orders) relating to the protection of the environment.
“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities) but excluding any debt securities convertible into such Equity Interests.
“Escrow Account” means the Dollar escrow account of the Borrower opened or to be opened with the Escrow Account Bank for the purpose of receiving the relevant amount of the Additional Advances in respect of Unpaid Non-Yard Costs in accordance with Section 2.3f).
“Escrow Account Bank” means Citibank N.A., London Branch of Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB.
“Escrow Account Security” means the account security in respect of the Escrow Account executed or, as the context may require, to be executed by the Borrower in favour of the Security Trustee in the form agreed by the Lenders and the Borrower on or about the Signing Date.
“Escrow Agency and Trust Deed” means the agency and trust deed executed or, as the context may require, to be executed by, amongst others, the Borrower, the parties to this Agreement and the Security Trustee.

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“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EUR”, “Euro” and the sign “€” mean the currency of participating member states of the European Monetary Union pursuant to Council Regulation (EC) 974/98 of 3 May 1998, as amended from time to time.
“Event of Default” is defined in Section 8.1.
“Existing Principal Subsidiaries” means each Subsidiary of the Borrower that is a Principal Subsidiary on the Signing Date.
“Facility Agent” is defined in the preamble and includes each other Person as shall have subsequently been appointed as the successor Facility Agent, and as shall have accepted such appointment, pursuant to Section 10.5.
“FATCA” means (a) Sections 1471 through 1474 of the Code, as in effect at the date hereof, and any current or future regulations promulgated thereunder or official interpretations thereof, (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
“FATCA Deduction” means a deduction or withholding from a payment under a Loan Document required by FATCA.
“FATCA Exempt Party” means a party to this Agreement that is entitled to receive payments free from any FATCA Deduction.
“Fee Letter” means any letter entered into by reference to this Agreement between any or all of the Facility Agent, the ECA Agent, the Mandated Lead Arrangers, the Arrangers, the Lenders and/or the Borrower setting out the amount of certain fees referred to in, or payable in connection with, this Agreement.
“Final Maturity” means twelve (12) years after the Actual Delivery Date.
“Final Non-Yard Costs Certificate” means the certificate to be provided to the Facility Agent in the form of Exhibit E-2 on or prior to the NYC Cut Off Date certifying the amount in Euro of the Paid Non-Yard Costs as at the date of that certificate, duly signed by the Borrower.
“Financial Covenant Waiver Period” means the period from and including 1 April 2020 to and including 30 September 2022 (it being acknowledged that the Financial Covenant Waiver Period shall have expired prior to the occurrence of the Novation Effective Time).
“First Novation Agreement Supplement” means the supplemental agreement dated 29 August 2020 and made between, amongst others, the Original Borrower and the parties hereto, pursuant to which the Novation Agreement was supplemented.

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“First Priority Assets” means the Vessels known on the date the Second Novation Agreement Supplement becomes effective as or that sailed under the name (i) Celebrity Constellation, (ii) Celebrity Equinox, (iii) Celebrity Millennium, (iv) Celebrity Silhouette, (v) Celebrity Summit, (vi) Celebrity Eclipse, (vii) Celebrity Infinity, (viii) Celebrity Reflection and (ix) Celebrity Solstice (it being understood that such Vessels shall remain “First Priority Assets” regardless of any change in name or ownership after such date).
“First Priority Guarantee” means the first priority guarantee granted by the First Priority Guarantor prior to the Effective Time (and any other first priority guarantee granted by a First Priority Holdco Subsidiary in connection with becoming a First Priority Guarantor) in favor of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit G.
“First Priority Guarantor” means Celebrity Cruise Lines Inc. (and any of its successors) and any other First Priority Holdco Subsidiary that has granted or, prior to that entity becoming a First Priority Holdco Subsidiary pursuant to a Disposal of a First Priority Asset in accordance with Section 7.2.5(a)(v)(A), will grant a First Priority Guarantee.
“First Priority Holdco Subsidiaries” means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any First Priority Assets.
“First Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Second Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of the Second Novation Agreement Supplement (being $3,320,000,000):
a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower.
Notwithstanding the foregoing, a First Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a First Priority Release Event would have occurred but for the continuance of the payment default described above, then a First Priority Release Event will occur immediately upon that payment default being remedied.
“Fiscal Quarter” means any quarter of a Fiscal Year.
“Fiscal Year” means any annual fiscal reporting period of the Borrower.

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“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.
“Fixed Rate” means:
a)    if the specifications of the Vessel reflect the terms of the LNG Change Order implementing the LNG Solution (as defined in, or by reference to, addendum no. 13 to the Construction Contract), 2.95% per annum (reflecting a stabilisation based funding rate of 2.55% per annum and a margin of 0.40% per annum); or
b)    if the specifications of the Vessel do not reflect the terms of the LNG Change Order implementing the LNG Solution (as defined in, or by reference to, addendum no. 13 to the Construction Contract), 3.00% per annum (reflecting a stabilisation based funding rate of 2.55% per annum and a margin of 0.45% per annum).
“Floating Rate” means a rate per annum equal to the sum of the LIBO Rate plus the Floating Rate Margin.
“Floating Rate Margin” means, for each Interest Period 0.85% per annum.
“Framework” means the document titled “Debt Deferral Extension Framework” in the form set out in Exhibit L to this Agreement, and which sets out certain key principles and parameters and being applicable to BpiFAE-covered loan agreements such as this Agreement.
“F.R.S. Board” means the Board of Governors of the Federal Reserve System or any successor thereto.
“French Authorities” means the Direction Générale du Trésor of the French Ministry of Economy and Finance, any successors thereto, or any other governmental authority in or of France involved in the provision, management or regulation of the terms, conditions and issuance of export credits including, among others, such entities to whom authority in respect of the extension or administration of export financing matters have been delegated, such as BpiFAE and Natixis DAI.
“Funding Losses Event” is defined in Section 4.4.1.
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“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.
“Group” means the Borrower and its Subsidiaries from time to time.
“Group Member” means any entity that is a member of the Group.
“Group Member Guarantee” means any guarantee or other similar or analogous credit support arrangement granted by a Group Member (other than the Borrower) in support of the Indebtedness of another Group Member or any other Person.
“Guarantee” means the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee and (if applicable) any Additional Guarantee and “Guarantees” means any or all of them.
“Guarantee Release Date” means the date upon which the First Priority Release Event, the Second Priority Release Event and the Third Priority Release Event have all occurred and accordingly, subject to Section 7.2.5(g) (and in particular proviso (2) to such Section 7.2.5(g)) each of the Guarantees has been released by the Facility Agent, and also being the date upon which, in accordance with Section 7.3, certain provisions of this Agreement shall be replaced by the provisions set out in Exhibit N, and if such date falls prior to the Novation Effective Time, the Guarantee Release Date shall be deemed to occur at the Novation Effective Time.
“Guarantor” means the provider of any Guarantee from time to time and “Guarantors” means any or all of them.
“Hedging Instruments” means options, caps, floors, collars, swaps, forwards, futures and any other agreements, options or instruments substantially similar thereto or any series or combination thereof used to hedge interest, foreign currency and commodity exposures.
“herein”, “hereof”, “hereto”, “hereunder” and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document.
“Historic Screen Rate” means, in relation to the Loan, the most applicable recent rate which appeared on Thomson Reuters LIBOR 01 Page (or any replacement page) for the currency of the Loan and for a period equal to the applicable Interest Period for the Loan and which is no more than 7 days before the commencement of the applicable Interest Period for which such rate may be applicable.
“Illegality Notice” is defined in Section 3.2(b).
“Indebtedness” means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or
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otherwise, to repurchase such property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than (i) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 180 days of the date the respective goods are delivered or the respective services are rendered and (ii) any purchase price adjustment, earnout or deferred payment of a similar nature incurred in connection with an acquisition (but only to the extent that no payment has at the time accrued pursuant to such purchase price adjustment, earnout or deferred payment obligation); (c) Indebtedness of others secured by a Lien on the property of such Person, whether or not the respective Indebtedness so secured has been assumed by such Person; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (e) Capital Lease Obligations of such Person; (f) guarantees by such Person of Indebtedness of others, up to the amount of Indebtedness so guaranteed; (g) obligations of such Person in respect of surety bonds and similar obligations; and (h) liabilities arising under Hedging Instruments.
“Indemnified Liabilities” is defined in Section 11.4.
“Indemnified Parties” is defined in Section 11.4.
“Interest Payment Date” means each Repayment Date.
“Interest Period” means the period between the Actual Delivery Date and the first Repayment Date, and subsequently each succeeding period between two consecutive Repayment Dates.
“Interest Stabilisation Agreement” means an agreement on interest stabilisation entered into between Natixis and each Lender (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of any security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1) in connection with the Loan.
“Investment Grade” means, with respect to Moody’s, a Senior Debt Rating of Baa3 or better and, with respect to S&P, a Senior Debt Rating of BBB- or better.
“Last Reported Fiscal Quarter(s)” means the most recently completed Fiscal Quarter(s) for which the Borrower has filed financial statements with the SEC as part of an annual report on Form 10-Q or a quarterly report on Form 10-Q.
“Lender Assignment Agreement” means any Lender Assignment Agreement substantially in the form of Exhibit C.
“Lender” and “Lenders” are defined in the preamble.
“Lending Office” means, relative to any Lender, the office of such Lender designated as such below its signature hereto or designated in a Lender Assignment Agreement or such other office of a Lender as designated from time to time by notice from such Lender to the Borrower and the Facility Agent, whether or not outside the United States but subject in all cases to the agreement of Natixis DAI in relation to the Fixed Rate, which shall be making or maintaining the Loan of such Lender hereunder.
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“LIBO Rate” means the rate per annum of the offered quotation for deposits in Dollars for six months (or for such other period as shall be agreed by the Borrower and the Facility Agent) which appears on Thomson Reuters LIBOR01 Page (or any successor page) at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period; provided that:
a)    subject to Section 3.3.6, if no such offered quotation appears on Thomson Reuters LIBOR01 Page (or any successor page) at the relevant time the LIBO Rate shall be the Historic Screen Rate or, if it is not possible to calculate an Historic Screen Rate, it shall be the rate per annum certified by the Facility Agent to be the average of the rates quoted by the Reference Banks as the rate at which each of the Reference Banks was (or would have been) offered deposits of Dollars by prime banks in the London interbank market in an amount approximately equal to the amount of the Loan and for a period of six months;
b)    for the purposes of determining the post-maturity rate of interest under Section 3.3.4, the LIBO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Facility Agent may determine after consultation with the Lenders, which period shall be no longer than one month unless the Borrower otherwise agrees; and
c)    if that rate is less than zero, the LIBO Rate shall be deemed to be zero.
“Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property to secure payment of a debt or performance of an obligation or other priority or preferential arrangement of any kind or nature whatsoever.
“Lien Basket Amount” is defined in Section 7.2.3.B)
“Loan” means the advances made by the Lenders under this Agreement from time to time or, as the case may be, the aggregate outstanding amount of such advances from time to time.
“Loan Documents” means this Agreement, the Novation Agreement, the First Novation Agreement Supplement, the Second Novation Agreement Supplement, the Third Novation Agreement Supplement, the Escrow Agency and Trust Deed, the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee, any Additional Guarantee, the Subordination Agreement, any Additional Subordination Agreement, any New Guarantor Subordination Agreement, the Fee Letters, the Escrow Account Security and any other document designated as a Loan Document by the Borrower and the Facility Agent.
“Loan Request” means the loan request and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit A hereto.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of the Facility Agent or any Lender under the Loan Documents or (c) the
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ability of the Borrower to perform its payment Obligations under the Loan Documents to which it is a party.
“Material Guarantor” means (i) each of Celebrity Cruise Lines Inc., RCI Holdings LLC, RCL Cruise Holdings LLC and RCL Cruises Ltd (and each of their respective successors) and (ii) any other entity that becomes a First Priority Guarantor, a Second Priority Guarantor or a Third Priority Guarantor after the effectiveness of the Second Novation Agreement Supplement.
“Material Litigation” is defined in Section 6.7.
“Maximum Loan Amount” is defined in the preamble.
“Maximum Non-Yard Costs Amount” is defined in the preamble.
“Monthly Outflow” means, in respect of each monthly period, the quotient obtained by dividing:
a)    the sum of (i) Total Cruise Operating Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (ii) Marketing, Selling and Administrative Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter and (iii) Interest Expense, net of Interest Capitalized (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter minus (x) Interest Income (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (y) any non-cash charges or impairments included in the calculation of Total Cruise Operating Expenses or Marketing, Selling and Administrative Expenses pursuant to sub-clause (i) or (ii) of this definition and (z) any loss on extinguishment of debt included in Interest Expenses, net of Interest Capitalized (as each such capitalized expression is defined or referenced in the financial statements of the Borrower); by
b)    three,
as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
“Moody's” means Moody's Investors Service, Inc.
“Natixis” means Natixis, a French société anonyme with its registered office at 30, avenue Pierre Mendès France, 75013 Paris, France, registered with the Paris Commercial and Companies Registry under number 542 044 524 RCS Paris.
“Natixis DAI” means Natixis DAI Direction des Activités Institutionnelles.
“Net Debt” means, at any time, the aggregate outstanding principal amount of all debt (including, without limitation, the principal portion of all capitalized leases) of the Borrower and its Subsidiaries (determined on a consolidated basis in accordance with GAAP) less the sum of (without duplication);
a)    all cash on hand of the Borrower and its Subsidiaries; plus
b)    all Cash Equivalents.

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“Net Debt to Capitalization Ratio” means, as at any date, the ratio of (a) Net Debt on such date to (b) Capitalization on such date.
“New Capital” means the aggregate gross amount of proceeds from any capital (whether in the form of debt, equity or otherwise) raised by the Borrower or any of its Subsidiaries in one or a series of financings after January 1, 2021 (including (a) amounts borrowed (that were previously undrawn) under committed term loan facilities existing as of such date and (b) Indebtedness borrowed in lieu of the committed term loan facilities described in the foregoing clause (a) if the incurrence of such Indebtedness results in a reduction or termination of such commitments); provided that proceeds of any capital raise which are used substantially concurrently for (i) the purchase price of a new Vessel or (ii) repayment of existing Indebtedness (other than Indebtedness (A) maturing no later than the end of the first full calendar year following the date of such repayment or (B) under any revolving credit agreement the repayment of which is not accompanied by a corresponding permanent reduction in the related revolving credit commitments), in each case, shall not constitute New Capital.
“New Financings” means proceeds from:
a)    borrowed money (whether by loan or issuance and sale of debt securities), including drawings under this Agreement and any revolving credit facilities of the Borrower, and
b)    the issuance and sale of equity securities.
“New Guarantor” means, with respect to any Vessel delivered after the effectiveness of the Second Novation Agreement Supplement, the Subsidiary of the Borrower that (a) directly owns the Equity Interests of the Principal Subsidiary that acquired such Vessel and (b) delivers an Additional Guarantee.
“New Guarantor Subordination Agreement” means a subordination agreement pursuant to which the Lenders’ rights under the applicable Additional Guarantee will be fully subordinated in right of payment to the rights of the beneficiaries of the applicable Senior Guarantee, which subordination agreement shall be in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and the agent, trustee or other representative for such Senior Guarantee.
“Nominated Owner” means a Subsidiary of the Borrower to be nominated by the Borrower prior to the Actual Delivery Date to take delivery of the Vessel under the Construction Contract.
“Non-Financed Capex” means, with respect to any period, (a) the aggregate amount of purchases of property (including Vessels) and equipment by the Borrower and its Subsidiaries during such period as determined in good faith by the Borrower minus (b) the aggregate amount of committed financing available to be drawn during such period to fund any such purchases of property and equipment.
“Non-Yard Costs” has the meaning assigned to “NYC Allowance” in paragraph 1.5 of Article II of the Construction Contract and, when such expression is prefaced by the word “incurred”, shall mean such amount of the Non-Yard Costs, not exceeding EUR 120,000,000,
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as shall at the relevant time have been paid, or become payable, to the Builder by the Borrower under the Construction Contract as part of the Contract Price.
“Nordea Agreement” means the U.S. $1,150,000,000 amended and restated credit agreement dated as of October 12, 2017, among the Borrower, as the borrower, the various financial institutions as are or shall become parties thereto and Nordea Bank AB (publ), New York Branch as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Novated Loan Balance” is as defined in the Novation Agreement.
“Novation Agreement” means the novation agreement dated 13 December 2019 (as amended from time to time, including by way of the Second Novation Agreement Supplement) and made between the Original Borrower and the parties hereto pursuant to which (amongst other things) this Agreement was novated, amended and restated.
“Novation Effective Time” is as defined in the Novation Agreement.
“NYC Cut Off Date” means the date falling 60 days after the Actual Delivery Date or such later date as the Lenders (with the approval of BpiFAE) may agree.
“Obligations” means all obligations (payment or otherwise) of the Borrower arising under or in connection with this Agreement.
“Obligor” means the Borrower and the Guarantors.
"Option Period" is defined in Section 3.2(c).
“Organic Document” means, relative to the Borrower, its articles of incorporation (inclusive of any articles of amendment to its articles of incorporation) and its by-laws.
“Original Borrower” means Palmeraie Finance Limited of 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands.
“Other Basic Contract Price Increases” is defined in the Novation Agreement.
“Other ECA Parties” means the facility agents acting on behalf of the creditors under any ECA Financing, whether existing on or after the effectiveness of the Second Novation Agreement Supplement (excluding the Facility Agent acting in any representative capacity in connection with this Agreement).
“Other Guarantees” means the guarantees issued, or to be issued, by any of the First Priority Guarantor, the Second Priority Guarantors, the Third Priority Guarantor or any New Guarantor in favor of any Other ECA Party; provided that any Other Guarantee issued by (a) the First Priority Guarantor shall be pari passu in right of payment with the First Priority Guarantee, (b) any Second Priority Guarantor shall be pari passu (or junior) in right of payment with the Second Priority Guarantee, (c) the Third Priority Guarantor shall be pari passu (or junior) in right of payment with the Third Priority Guarantee and (d) any New Guarantor shall be pari passu in right of payment with each Additional Guarantee issued by such New Guarantor.

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“Other Senior Parties” means each agent, trustee or other representative in respect of Bank Indebtedness or Credit Card Obligations.
“Paid Non-Yard Costs” means as at any relevant date, the amount in Euro of the Non-Yard Costs which have been paid for by the Borrower and, where applicable, supplied, installed and completed on the Purchased Vessel and as determined in accordance with the relevant amounts certified in the Delivery Non-Yard Costs Certificate or, as the case may be, the Final Non-Yard Costs Certificate as at such time.
“Pari Passu Creditor” means with respect to any Group Member, any creditor under or in respect of any Indebtedness incurred by such Group Member (including in respect of any ECA Financing) which is not, as at December 31, 2020, secured by a Lien over a Vessel or which, at any time (whether pursuant to the operation of Section 7.1.9(d) or otherwise), shares in the same security and/or guarantee package as the Lenders.
“Participant” is defined in Section 11.11.2.
“Participant Register” is defined in Section 11.11.2.
“Percentage” means, relative to any Lender, the percentage set forth opposite its signature hereto or as set out in the applicable Lender Assignment Agreement, as such percentage may be adjusted from time to time pursuant to Section 4.9 or pursuant to Lender Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered pursuant to Section 11.11.1.
“Permitted Refinancing” means, in respect of any Indebtedness or commitments, any amendment, restatement, extension, renewal, refinancing or replacement that does not increase the aggregate principal amount of such Indebtedness or commitments outstanding at the time of such Permitted Refinancing other than by the amount of unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses associated with such amendment, restatement, supplement, refinancing or other modification.
“Person” means any natural person, corporation, limited liability company, partnership, firm, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity.
“Poseidon Principles” means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published in June 2019 as the same may be amended or replaced to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organisation from time to time.
“Prepayment Event” is defined in Section 9.1.
“Principal Subsidiary” means any Subsidiary of the Borrower that owns a Vessel.
“Purchased Vessel” is defined in the preamble.
“Purchase Price” means, with respect to any Vessel, the book value of such Vessel at the time initially acquired by a Principal Subsidiary.
“Receivable Purchase Agreement” is as defined in the Novation Agreement.
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“Reference Banks” means, at any time where the Floating Rate applies, three leading international banks active in the European or United States interbank market appointed by the Facility Agent and which are acceptable to the Borrower (acting reasonably).
“Register” is defined in Section 11.11.3.
“Repayment Date” means, subject to Section 4.8(c), each of the dates for payment of the repayment installments of the Loan pursuant to Section 3.1.
“Required Lenders” means (a) at any time when SFIL is a Lender, SFIL and at least one other Lender that in the aggregate with SFIL hold more than 50% of the aggregate unpaid principal amount of the Loan or (b) or at any other time, Lenders that in the aggregate hold more than 50% of the aggregate unpaid principal amount of the Loan, and in each case, if no such principal amount is then outstanding, Lenders that in the aggregate have more than 50% of the Commitments.
“Resolution Authority” means any body which has authority to exercise any Write-down and Conversion Powers.
“Restricted Credit Enhancement” means any Group Member Guarantee, Lien or other security or other similar or analogous credit support arrangement granted by a Group Member in respect of any Indebtedness of a Group Member.
“Restricted Loan Arrangement” means any loan or credit (including any seller’s credit granted in connection with the sale of a Vessel or other assets (and provided that any such sale complies with the provisions of Section 9.1.11(c))) made available by a Group Member to any Person but excluding any such loan or credit that is provided:

(a)    to another Group Member:

(b)    to a Person in respect of which the Borrower or any Subsidiary holds Equity Interests;

(c)    in circumstances where the relevant credit is a seller’s credit granted by that Group Member in the ordinary course of industry business and consistent with past practice; or

(d)    in circumstances where the relevant credit is otherwise in the ordinary course of business and/or consistent with past practice (it being agreed that any loans provided by the Group to its travel agents, vendors or customers to assist the Group during the crisis and/or recovery will be considered in the ordinary course of business) and where the aggregate amount of such credit referred to in this paragraph (d) does not exceed $100,000,000 (or its equivalent in any other currency) at any relevant time,


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provided that no Group Member shall be permitted to make or grant any new loan or other credit (or make any further advances in respect of any existing loan or other credit) of any kind to any Person at any time where an Event of Default or a Prepayment Event has occurred and is continuing. It is agreed that for the purpose of this definition “credit” shall not include any short term trade and/or operational receivables owing to a Group Member by a Person who is not a Group Member and which are created or arise in the ordinary course of business.
“Restricted Payments” means any dividend or other distribution (whether in cash, securities or other property (other than Equity Interests)), with respect to any Equity Interests in the Borrower, or any share buy-back program or other payment (whether in cash, securities or other property (other than Equity Interests)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrower.
“Restricted Voluntary Prepayment” means, in respect of any Indebtedness for borrowed money of any Group Member (other than any such Indebtedness incurred pursuant to an ECA Financing), the relevant Group Member elects to prepay, repay or redeem that Indebtedness prior to its scheduled maturity date other than:
(a)    any Indebtedness which is scheduled to mature on or prior to the end of the following calendar year (and whether pursuant to an amendment and extension of the agreements evidencing such Indebtedness and/or using proceeds raised by any Group Member in connection with any issuance of capital (whether in the form of Indebtedness for borrowed money, equity or otherwise but, in the case of any Indebtedness, subject to that Indebtedness being incurred in compliance with the carve-out provision set out in paragraph (c) of the definition of Debt Incurrence) or pursuant to the exercise of the equity claw feature in the Secured Note Indenture), provided, however, that the Borrower may, with the prior written consent of BpiFAE, prepay, repay or redeem any notes issued under indentures which are callable in accordance with their terms, including any call date through the use of the equity claw feature;
(b)    pursuant to a voluntary repayment under a revolving credit facility that does not result in the permanent reduction of the relevant revolving credit commitments under that revolving credit facility; and/or
(c)    where such prepayment, repayment or redemption is made solely for the purpose of avoiding an event of default or acceleration under the terms of the facility agreement in respect of the relevant Indebtedness.
“S&P” means Standard & Poor's Financial Services LLC, a wholly-owned subsidiary of The McGraw-Hill Financial Inc.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions.

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“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state, or any person owned or controlled by any such Person or Persons, or (b) any Person operating, organized or resident in a Sanctioned Country.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom.
“SEC” means the United States Securities and Exchange Commission and any successor thereto.
“Second Novation Agreement Supplement” means the supplemental agreement dated 13 November 2020 and made between, amongst others, the Original Borrower and the parties hereto, pursuant to which the Novation Agreement was supplemented.
“Second Priority Assets” means the Vessels known on the date the Second Novation Agreement Supplement becomes effective as or that sailed under the name (i) Azamara Quest, (ii) Azamara Pursuit, (iii) Azamara Journey, (iv) Celebrity Edge, (v) Celebrity Apex, (vi) Celebrity Flora, (vii) Celebrity Xpedition, (viii) Celebrity Xperience, (ix) Celebrity Xploration, (x) Monarch, (xi) Horizon and (xii) Sovereign (it being understood that such Vessels shall remain “Second Priority Assets” regardless of any change in name or ownership after such date).
“Second Priority Guarantee” means the second priority guarantee granted by the Second Priority Guarantors prior to the Effective Time (and any other second priority guarantee granted by a Second Priority Holdco Subsidiary in connection with becoming a Second Priority Guarantor) in favor of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit H.
“Second Priority Guarantors” means RCL Cruise Holdings LLC, Torcatt Enterprises S.A., RCL Holdings Cooperatief UA, RCL Cruises Ltd and RCL Investments Ltd (and any of their respective successors) and any other Second Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Second Priority Holdco Subsidiary pursuant to a Disposal of a Second Priority Asset in accordance with Section 7.2.5(b)(iii)(A), will grant a Second Priority Guarantee.
“Second Priority Holdco Subsidiaries” means (a) RCL Cruises Ltd. or any other Subsidiaries of the Borrower that directly own all of the equity interests in (i) RCL TUI Cruises German Verwaltungs GmbH and (ii) RCL TUI Cruises German Holding GmbH & Co. KG and (b) one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Second Priority Asset. For the avoidance of doubt, Second Priority Holdco Subsidiaries shall not include any Principal Subsidiary.
“Second Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank
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Indebtedness outstanding as of the effectiveness of the Second Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of the Second Novation Agreement Supplement (being $3,320,000,000):
a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Second Priority Guarantors in respect of the Bank Indebtedness.
Notwithstanding the foregoing, a Second Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Second Priority Release Event would have occurred but for the continuance of the payment default described above, then a Second Priority Release Event will occur immediately upon that payment default being remedied.
“Secured Note Indebtedness” means the Borrower’s Indebtedness under the Secured Note Indenture.
“Secured Note Indenture” means that certain Indenture, dated as of May 19, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time) in respect of the $1,000,000,000 10.875% senior secured notes due 2023 and $2,320,000,000 11.50% senior secured notes due 2025, by and among the Borrower, as issuer, the guarantors party thereto from time to time, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee and as security agent.
“Security Trustee” means Citicorp Trustee Company Limited of Citigroup Centre, Canada Square, London E14 5LB in its capacity as security trustee for the purpose of the Escrow Account Security.
“Senior Debt Rating” means, as of any date, (a) the implied senior debt rating of the Borrower for debt pari passu in right of payment and in right of collateral security with the Obligations as given by 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).
“Senior Guarantee” means any guarantee by a New Guarantor of Indebtedness incurred by the Borrower or any of its Subsidiaries after the effectiveness of the Second Novation Agreement Supplement; provided that the aggregate principal amount of Indebtedness guaranteed under any Senior Guarantee shall in no case exceed 10.0% of the Purchase Price of
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the relevant Vessel owned by the Principal Subsidiary of such New Guarantor that acquired such Vessel.
“Senior Parties” means each agent, trustee or other representative in respect of Unsecured Note Indebtedness or DDTL Indebtedness.
“SFIL” means SFIL, a French société anonyme with is registered office at 1-3 rue du Passeur de Boulogne, 92130 Issy-les-Moulineaux, France, registered at the trade and companies registry of Nanterre under number 428 782 585.
“Signing Date” means the date of the Novation Agreement.
“Spot Rate of Exchange” is as defined in the Novation Agreement.
“Statement of Compliance” means a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.
“Stockholders’ Equity” means, as at any date, the Borrower’s stockholders’ equity on such date, excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP, provided that any non-cash charge to Stockholders’ Equity resulting (directly or indirectly) from a change after the Signing Date in GAAP or in the interpretation thereof shall be disregarded in the computation of Stockholders’ Equity such that the amount of any reduction thereof resulting from such change shall be added back to Stockholders’ Equity.
“Subordination Agreement” means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee executed by the Facility Agent and any of the Senior Parties or Other Senior Parties.
“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.
“Third Novation Agreement Supplement” means the supplemental agreement dated 6 July 2021 and made between, amongst others, the Original Borrower, the Security Trustee and the parties hereto, pursuant to which the Novation Agreement was amended in connection with the Framework.
“Third Priority Assets” means the Vessels known on the date the Second Novation Agreement Supplement becomes effective as (i) Symphony of the Seas, (ii) Oasis of the Seas, (iii) Harmony of the Seas, (iv) Spectrum of the Seas, (v) Quantum of the Seas, (vi) Ovation of the Seas and (vii) Anthem of the Seas (it being understood that such Vessels shall remain “Third Priority Assets” regardless of any change in name or ownership after the such date).
“Third Priority Guarantee” means the third priority guarantee granted by RCI Holdings LLC prior to the Effective Time (and any other third priority guarantee granted by a Third Priority Holdco Subsidiary in connection with becoming a Third Priority Guarantor) in favor of
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the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit I.
“Third Priority Guarantor” means RCI Holdings LLC (and any of its successors) and any other Third Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Third Priority Holdco Subsidiary pursuant to a Disposal of a Third Priority Asset in accordance with Section 7.2.5(c)(iii)(A), will grant a Third Priority Guarantee.
“Third Priority Holdco Subsidiaries” means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Third Priority Asset.
“Third Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Second Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Unsecured Note Indebtedness and the DDTL Indebtedness outstanding as of the effectiveness of the Second Novation Agreement Supplement (being, in aggregate, $1,700,000,000):
a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Third Priority Guarantor in respect of the Unsecured Note Indebtedness, the DDTL Indebtedness and the Bank Indebtedness.
Notwithstanding the foregoing, a Third Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Third Priority Release Event would have occurred but for the continuance of the payment default described above, then a Third Priority Release Event will occur immediately upon that payment default being remedied.
“Third Supplement Effective Date” has the meaning ascribed to the term “Amendment Effective Date” in the Third Novation Agreement Supplement.
“UK Bail-In Legislation” means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 of Directive 2014/59/EU) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
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“Unpaid Non-Yard Costs” means, as at the Actual Delivery Date, the amount in Euro of the Non-Yard Costs which have not been paid for by the Borrower and/or where applicable, supplied, installed and completed on the Purchased Vessel as at the Actual Delivery Date and as determined in accordance with the relevant amounts certified in the Delivery Non-Yard Costs Certificate.
“Unsecured Note Indebtedness” means the Borrower’s Indebtedness under the Unsecured Note Indenture.
“Unsecured Note Indenture” means that certain Indenture, dated as of June 9, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time) in respect of the $1,000,000,000 9.125% senior notes due 2023, by and among the Borrower, as issuer, the guarantor party thereto, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee.
“US Dollar Equivalent” means (i) for all EUR amounts payable in respect of the Additional Advances for the amount of the Non-Yard Costs or the Other Basic Contract Price Increases referred to in clause 5.2(a) of the Novation Agreement (and disregarding for the purposes of this definition that the Additional Advance in respect of such amounts shall be drawn in Dollars), such EUR amounts converted to a corresponding Dollar amount at the Weighted Average Rate of Exchange and (ii) for the EUR amount payable in respect of the Additional Advance for the BpiFAE Premium referred to in clause 5.2(b) of the Novation Agreement and for the calculation and payment of the Novated Loan Balance (as defined in the Novation Agreement), the amount thereof in EUR converted to a corresponding Dollar amount as determined by the Facility Agent on the basis of the Spot Rate of Exchange. Such rate of exchange under (i) above shall be evidenced by foreign exchange counterparty confirmations to the extent applicable. The US Dollar Equivalent of the Maximum Loan Amount shall be calculated by the Borrower in consultation with the Facility Agent no less than two (2) Business Days prior to the proposed Actual Delivery Date.
“United States” or “U.S.” means the United States of America, its fifty States and the District of Columbia.
“Vessel” means a passenger cruise vessel owned by a Group Member.
“Weighted Average Rate of Exchange” means the weighted average rate of exchange that the Borrower has agreed, either in the spot or forward currency markets, to pay its counterparties for the purchase of the relevant amounts of euro with Dollars for the payment of the euro amount of the Contract Price (including the portion thereof comprising the change orders, any Other Basic Contract Price Increases and the Non-Yard Costs) and including in such weighted average calculation (a) the NYC Applicable Rate (as defined in the Novation Agreement) in relation to the portion of the Contract Price comprising the Non-Yard Costs and (b) the spot rates for any other euro amounts that have not been hedged by the Borrower.
“Write-Down and Conversion Powers” means: (a) with respect to any Resolution Authority, the write-down and conversion powers of such Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule; and (b) in relation to any UK Bail-In Legislation: (i) any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce,
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modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and (ii) any similar or analogous powers under that UK Bail-In Legislation.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall, when capitalized, have such meanings when used in the Loan Request and each notice and other communication delivered from time to time in connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in this Agreement and in each other Loan Document to any Article or Section are references to such Article or Section of this Agreement or such other Loan Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise specified, all accounting terms used herein or in any other Loan Document shall be interpreted, all accounting determinations and computations hereunder or thereunder (including under Section 7.2.4) shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with United States generally accepted accounting principles (“GAAP”) consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies); provided that if the Borrower elects to apply or is required to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP, upon any such election and notice to the Facility Agent, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided further that if, as a result of (i) any change in GAAP or IFRS or in the interpretation thereof or (ii) the application by the Borrower of IFRS in lieu of GAAP, in each case, after the date of the financial statements referred to in Section 6.15, there is a change in the manner of determining any of the items referred to herein or thereunder that are to be determined by reference to GAAP, and the effect of such change would (in the reasonable opinion of the Borrower or the Facility Agent) be such as to affect the basis or efficacy of the financial covenants contained in Section 7.2.4 in ascertaining the consolidated financial condition of the Borrower and its Subsidiaries and the Borrower notifies the Facility Agent that the Borrower requests an amendment to any provision hereof to eliminate such change occurring after the date hereof in GAAP or the application thereof on the operation of such provision (or if the Facility Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), then such item shall for the purposes of Section 7.2.4 continue to be determined in accordance with GAAP relating thereto as if GAAP were applied immediately prior to such change in GAAP
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or in the interpretation thereof until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding the foregoing, all obligations of any person that are or would be characterized as operating lease obligations in accordance with GAAP on the B34 Facility Amendment Date (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations for the purposes of this Agreement regardless of any change in GAAP following the B34 Facility Amendment Date that would otherwise require such obligations to be recharacterized (on a prospective or retroactive basis or otherwise) as capital leases, provided that, for clarification purposes, operating leases recorded as liabilities on the balance sheet due to a change in accounting treatment, or otherwise, shall for all purposes not be treated as Indebtedness, Capital Lease Obligations or Capitalized Lease Liabilities.
ARTICLE II

COMMITMENTS AND BORROWING PROCEDURES
SECTION 2.1. Commitment. On the terms and subject to the conditions of this Agreement (including Article V), each Lender severally agrees to make its portion of the Loan pursuant to its Commitment described in Section 2.2. No Lender’s obligation to make its portion of the Loan shall be affected by any other Lender’s failure to make its portion of the Loan.
SECTION 2.2. Commitment of the Lenders; Termination and Reduction of Commitments.
a)    Each Lender will make its portion of the Loan available to the Borrower in accordance with Section 2.3 on the Actual Delivery Date. The commitment of each Lender described in this Section 2.2 (herein referred to as its “Commitment”) shall be the commitment of such Lender to make available to the Borrower its portion of the Loan hereunder expressed as the initial amount set forth opposite such Lender’s name on its signature page attached hereto or, in the case of any Lender that becomes a Lender pursuant to an assignment pursuant to Section 11.11.1, the amount set forth as such Lender’s Commitment in the related Lender Assignment Agreement, in each case as such amount may be reduced from time to time pursuant clause 10.2 of the Novation Agreement or reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.11.1. Notwithstanding the foregoing, each Lender’s Commitment shall terminate on the earlier of (i) the Commitment Termination Date if the Purchased Vessel is not delivered prior to such date and (ii) the Actual Delivery Date.
b)    If any Lender shall default in its obligations under Section 2.1, the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Lender.
SECTION 2.3. Borrowing Procedure.
a)    Part of the Loan in an amount equal to the Novated Loan Balance shall be assumed by the Borrower and be deemed to be advanced to, and borrowed by the Borrower,
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pursuant to the provisions of clause 3 of the Novation Agreement and thereafter converted into Dollars pursuant to clause 5.1 of the Novation Agreement.
b)    In relation to the amount of the Loan comprised by the Additional Advances, the Borrower shall deliver a Loan Request and the documents required to be delivered pursuant to Section 5.1.1(a) to the Facility Agent on or before 3:00 p.m., London time, not less than two (2) Business Days prior to the anticipated Actual Delivery Date. The Additional Advances shall be drawn in Dollars.
c)    The Facility Agent shall promptly notify each Lender of the Loan Request in respect of the Additional Advances by forwarding a copy thereof to each Lender, together with its attachments. On the terms and subject to the conditions of this Agreement, the portion of the Loan in respect of the Additional Advances shall be made on the Actual Delivery Date. On or before 11:00 a.m., London time, on the Actual Delivery Date, the Lenders shall, without any set-off or counterclaim, deposit with the Facility Agent same day funds in an amount equal to such Lender’s Percentage of the requested portion of the Additional Advances in Dollars. Such deposits will be made to such account which the Facility Agent shall specify from time to time by notice to the Lenders. To the extent funds are so received from the Lenders (and having regard, where applicable, to Sections 2.3d), e) and f) below), the Facility Agent shall, without any set-off or counterclaim, make such funds available to the Borrower on the Actual Delivery Date by wire transfer of same day funds to the accounts the Borrower shall have specified in its Loan Request.
d)    If the Borrower elects to finance that part of the BpiFAE Premium payable by the Borrower with an Additional Advance under clause 5.2(b)(i) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request. The amount of the advance in Dollars (the “US Dollar BpiFAE Advance Amount”) that will fund the BpiFAE Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the BpiFAE Premium to be financed with such advance, which amount shall be determined by the Facility Agent based on the Spot Rate of Exchange. The Facility Agent shall notify the Borrower and the Lenders of the US Dollar BpiFAE Advance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar BpiFAE Advance Amount with the Facility Agent in accordance with Section 2.3.c). The Facility Agent shall furnish a certificate to the Borrower on the date such Loan Request is delivered setting forth such Spot Rate of Exchange, its derivation and the calculation of the US Dollar BpiFAE Advance Amount. If the Borrower elects to so finance the BpiFAE Premium, the Borrower will be deemed to have directed the Facility Agent to pay over directly to BpiFAE on behalf of the Borrower that portion of the EUR amount of the BpiFAE Premium to be financed with the proceeds of the advance on the Actual Delivery Date and to retain for its own account deposits made by the Lenders in Dollars in an amount equal to the portion of the US Dollar BpiFAE Advance Amount attributable to the BpiFAE Premium paid by the Facility Agent to BpiFAE on behalf of the Borrower.
e)    If the Borrower elects to finance that part of the BpiFAE Premium payable by the Borrower with an Additional Advance under clause 5.2(b)(ii) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request (and whether it wishes to receive such amount in EUR or in Dollars). The amount of the advance in Dollars (the “US Dollar BpiFAE Balance Amount”) that will fund the BpiFAE Premium shall be equal to the Dollar amount that corresponds to the EUR amount of
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the BpiFAE Premium to be financed with such advance, which amount shall be determined by the Facility Agent based on the Spot Rate of Exchange. The Facility Agent shall notify the Borrower and the Lenders of the US Dollar BpiFAE Balance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar BpiFAE Balance Amount with the Facility Agent in accordance with Section 2.3 c). The Facility Agent shall furnish a certificate to the Borrower on the date such Loan Request is delivered setting forth such Spot Rate of Exchange, its derivation and the calculation of the US Dollar BpiFAE Balance Amount. If the Borrower elects to so finance the BpiFAE Premium and receive the proceeds in EUR, the Borrower will be deemed to have directed the Facility Agent to pay over to the Borrower that portion of the EUR amount of the BpiFAE Premium to be financed with the proceeds of the advance on the Actual Delivery Date and to retain for its own account deposits made by the Lenders in Dollars in an amount equal to the US Dollar BpiFAE Balance Amount.
f)    In relation to any Additional Advance that is to be advanced to the Borrower in respect of the Non-Yard Costs it is agreed that:
i)    an amount equal to the US Dollar Equivalent of eighty per cent (80%) of the Paid Non-Yard Costs shall be advanced to the Borrower on the Actual Delivery Date in accordance with the provisions of Section 2.3 c), which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery Non-Yard Costs Certificate; and
ii)    an amount equal to the US Dollar Equivalent of eighty per cent (80%) of the Unpaid Non-Yard Costs, which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery Non-Yard Costs Certificate (the “Escrow Amount”), shall be remitted by the Facility Agent (and the Borrower hereby instructs the Facility Agent to make such remittance) to the Escrow Account and such amount shall be regulated in accordance with the following provisions of this Section 2.3 f) and the Escrow Account Security,
subject to the aggregate of the amounts referred to in i) and ii) above not exceeding the Maximum Non-Yard Costs Amount.
Where an Escrow Amount payment is made to the Escrow Account pursuant to ii) above, the Borrower shall be entitled at any time prior to the NYC Cut Off Date to provide the Facility Agent with the Final Non-Yard Cost Certificate setting out the final amount of the Paid Non-Yard Costs. Where the Final Non-Yard Costs Certificate is so received by the Facility Agent, the Facility Agent shall determine promptly the US Dollar Equivalent of the EUR amount of the Paid Non-Yard Costs and within one Business Day thereafter shall authorize the release of the Escrow Amount (or, if less, an amount equal to the US Dollar Equivalent of eighty per cent of the final amount of the Paid Non-Yard Costs (as determined above) less the amount previously advanced to the Borrower under i) above) to the Borrower. Any interest accruing on the Escrow Account shall be released to the Borrower at the same time as the release of the Escrow Amount (or, if applicable, part thereof) to the Borrower pursuant to this provision.
If any amount of the Escrow Amount remains on the Escrow Account on the day falling immediately after the NYC Cut Off Date (having regard to any applicable permitted release of moneys from the Escrow Account to the Borrower referred to above) then on
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the Business Day thereafter the Facility Agent shall be entitled to request the withdrawal of that amount from the Escrow Account and shall apply the amount so received, on behalf of the Borrower, in or towards prepayment of the Loan.
The basis on which the Escrow Account Security is held by the Security Trustee for the benefit of the Lenders is regulated under the Escrow Agency and Trust Deed.
SECTION 2.4. Funding. Each Lender may, if it so elects, fulfill its obligation to make or continue its portion of the Loan hereunder by causing a branch or Affiliate (or an international banking facility created by such Lender) other than that indicated next to its signature to this Agreement or, as the case may be, in the relevant Lender Assignment Agreement, to make or maintain such portion of the Loan; provided that such portion of the Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay such portion of the Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility; provided, further, that the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had the Lender not caused such branch or Affiliate (or international banking facility) to make or maintain such portion of the Loan.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments.
a)    The Borrower shall repay the Loan in 24 equal semi-annual installments, with the first installment to fall due on the date falling six (6) months after the Actual Delivery Date and the final installment to fall due on the date of Final Maturity.
b)    No such amounts repaid by the Borrower pursuant to this Section 3.1 may be re-borrowed under the terms of this Agreement.
SECTION 3.2. Prepayment.
a)    The Borrower
i)    may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of the Loan; provided that:
(A)    all such voluntary prepayments shall require at least five (5) Business Days’ prior written notice to the Facility Agent; and
(B)    all such voluntary partial prepayments shall be in an aggregate minimum amount of $10,000,000 and a multiple of $1,000,000 (or in the remaining amount of the Loan) and shall be applied in inverse order of maturity or ratably among all remaining installments, as the Borrower shall designate to the Facility Agent, in satisfaction of the remaining repayment installments of the Loan; and
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ii)    shall, immediately upon any acceleration of the repayment of the installments of the Loan pursuant to Section 8.2 or 8.3 or the mandatory prepayment of the Loan pursuant to Section 9.2, repay the Loan.
b)    If it becomes unlawful in any jurisdiction for any Lender to perform any of its obligations under the Loan Documents or to maintain or fund its portion of the Loan, the affected Lender may give written notice (the "Illegality Notice") to the Borrower and the Facility Agent of such event, including reasonable details of the relevant circumstances.
c)    If an affected Lender delivers an Illegality Notice, the Borrower, the Facility Agent and the affected Lender shall discuss in good faith (but without obligation) what steps may be open to the relevant Lender to mitigate or remove such circumstances but, if they are unable to agree such steps within 20 Business Days or if the Borrower so elects, the Borrower shall have the right, but not the obligation, exercisable at any time within 50 days after receipt of such Illegality Notice or, if earlier, the date upon which the unlawful event referred to in (b) above will apply (but not being a date falling earlier than the end of the 20 Business Day period referred to above) (the "Option Period"), either (1) to prepay the portion of the Loan held by such Lender in full on or before the expiry of the Option Period, together with all unpaid interest and fees thereon accrued to but excluding the date of such prepayment, or (2) to replace such Lender on or before the expiry of the Option Period with one or more financial institutions (I) acceptable to the Facility Agent (such consent not to be unreasonably withheld or delayed) and (II) where relevant, eligible to benefit from an Interest Stabilisation Agreement, pursuant to assignment(s) notified to and consented in writing by BpiFAE and, where relevant Natixis DAI, provided that (x) in the case of a single assignment, any such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or, in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement and (y) no Lender shall be obliged to make any such assignment as a result of an election by the Borrower pursuant to this Section 3.2(c) unless and until such Lender shall have received one or more payments from one or more Assignee Lenders and/or the Borrower in an aggregate amount at least equal to the portion of the Loan held by such Lender, together with all unpaid interest and fees thereon accrued to but excluding the date of such assignment (and all other amounts then owing to such Lender under this Agreement).
Each prepayment of the Loan made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4. No amounts prepaid by the Borrower may be re-borrowed under the terms of this Agreement.
SECTION 3.3. Interest Provisions. Interest on the outstanding principal amount of the Loan shall accrue and be payable in accordance with this Section 3.3.
SECTION 3.3.1. Rates. The Loan shall accrue interest from the Actual Delivery Date to the date of repayment or prepayment of the Loan in full to the Lenders at either the Fixed Rate or, where the proviso to Section 5.1.10 applies, the Floating Rate. Interest calculated at the Fixed Rate or the Floating Rate shall (having regard in the case of a Defaulting Lender to Section 10.3(b)) be payable in
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arrears on each Repayment Date. The Loan shall bear interest from and including the first day of the applicable Interest Period to (but not including) the last day of such Interest Period at the interest rate determined as applicable to the Loan. All interest shall be calculated on the basis of the actual number of days elapsed over a year comprised of 360 days.
SECTION 3.3.2. [Intentionally omitted]
SECTION 3.3.3. Interest stabilisation. Each Lender who is a party hereto on the Signing Date represents and warrants to the Borrower that it has entered into an Interest Stabilisation Agreement or is in all respects eligible and authorised to enter into and shall enter into an Interest Stabilisation Agreement promptly after the Signing Date and by no later than the Initial Effective Date (as defined in the Receivable Purchase Agreement), and any Lender not a party hereto on the Signing Date (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1(iv)) represents and warrants to the Borrower on the date that such Lender becomes a party hereto that it has entered into an Interest Stabilisation Agreement on or prior to becoming a party hereto.
SECTION 3.3.4. Post-Maturity Rates. After the date any principal amount of the Loan is due and payable (whether on any Repayment Date, upon acceleration or otherwise), or after any other monetary Obligation of the Borrower shall have become due and payable, the Borrower shall pay, but only to the extent permitted by law, interest (after as well as before judgment) on such amounts for each day during the period of such default at a rate per annum certified by the Facility Agent to the Borrower (which certification shall be conclusive in the absence of manifest error) to be equal to the sum of the Floating Rate plus 1.5% per annum.
SECTION 3.3.5. Payment Dates. Interest accrued on the Loan shall be payable, without duplication, on the earliest of:
a)    each Interest Payment Date;
b)    each Repayment Date;
c)    the date of any prepayment, in whole or in part, of principal outstanding on the Loan (but only on the principal so prepaid); and
d)    on that portion of the Loan the repayment of which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.
SECTION 3.3.6. Interest Rate Determination; Replacement Reference Banks. Where Section 3.3.4 or the Floating Rate applies, the Facility Agent shall obtain from each Reference Bank timely information for the purpose of determining the LIBO Rate in the event that no offered quotation appears on Thomson Reuters LIBOR01 Page (or any successor page) and the LIBO Rate is to be determined by reference to quotations supplied by the Reference Banks and not by reference to the Historic Screen Rate. If any one or more of the Reference Banks
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shall fail to furnish in a timely manner such information to the Facility Agent for any such interest rate, the Facility Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Banks. If the Borrower elects to add an additional Reference Bank hereunder or a Reference Bank ceases for any reason to be able and willing to act as such, the Facility Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Bank reasonably acceptable to the Borrower, and such replaced Reference Bank shall cease to be a Reference Bank hereunder. The Facility Agent shall furnish to the Borrower and to the Lenders each determination of the LIBO Rate made by reference to quotations of interest rates furnished by Reference Banks (it being understood that the Facility Agent shall not be required to disclose to any party hereto (other than the Borrower) any information regarding any Reference Bank or any rate quoted by a Reference Bank, including, without limitation, whether a Reference Bank has provided a rate or the rate provided by any individual Reference Bank).
Interest accrued on the Loan or other monetary Obligations arising under this Agreement or any other Loan Document after the date such amount is due and payable (whether upon acceleration or otherwise) shall be payable upon demand.
SECTION 3.3.7. Unavailability of LIBO.
Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Facility Agent determines (which determination shall, in the absence of manifest error, be conclusive) or the Borrower or the Required Lenders notify the Facility Agent (with, in the case of the Required Lenders, a copy to Borrower) that the Borrower or the Required Lenders (as applicable) have determined that:
a)    adequate and reasonable means would not exist for ascertaining (should the Floating Rate apply) LIBO for the relevant Interest Period including, without limitation, because the LIBO Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
b)    the administrator of the LIBO Rate or a governmental authority having jurisdiction over the Facility Agent has made a public statement identifying a specific date after which LIBO or the LIBO Rate shall no longer be made available or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”); or
c)    syndicated loans currently being executed, or existing syndicated loans that include language similar to that contained in this section 3.3.7, are being executed and/or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBO,
then, reasonably promptly after such determination by the Facility Agent or receipt by the Facility Agent of such notice, as applicable, or if the Borrower otherwise requests, the Facility Agent and the Borrower may amend this Agreement to replace LIBO with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities
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for such alternative benchmarks (any such proposed rate, a “LIBO Successor Rate”), and also together with any proposed LIBO Successor Rate Conforming Changes (as defined below) and any such amendment shall become effective at 5:00 P.M. (London time) on the fifth (5) Business Day after the Facility Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Facility Agent written notice that such Required Lenders do not accept such amendment. Such LIBO Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Facility Agent, such LIBO Successor Rate shall be applied in a manner as otherwise reasonably determined by the Facility Agent.
If no LIBO Successor Rate has been determined and the circumstances under paragraph a) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Facility Agent will promptly notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to fund or maintain the relevant portion of the Loan at the LIBO Rate (to the extent of the affected part of the Loan or Interest Periods) shall be suspended. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of any part of the Loan (to the extent of the affected part of the Loan or Interest Periods).
Notwithstanding anything else herein, any definition of LIBO Successor Rate shall provide that in no event shall such LIBO Successor Rate be less than zero for purposes of this Agreement.
The Facility Agent (acting on the instructions of the Required Lenders) and the Borrower shall, during the period between 1 April 2021 and 30 June 2022 (or such later date as may be agreed between the Required Lenders and the Borrower), enter into negotiations in good faith with a view to agreeing a basis upon which a LIBO Successor Rate can be used in replacement of the LIBO Rate, together with any associated LIBO Successor Rate Conforming Changes, and a timetable for the implementation of these changes so that the appropriate changes can be made prior to the Scheduled Unavailability Date.
For the purposes of this Agreement, “LIBO Successor Rate Conforming Changes” means, with respect to any proposed LIBO Successor Rate, any conforming changes to the definition of Floating Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Facility Agent in consultation with the Borrower, to reflect the adoption of such LIBO Successor Rate and to permit the administration thereof by the Facility Agent in a manner substantially consistent with market practice (or, if the Facility Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBO Successor Rate exists, in such other manner of administration as the Facility Agent determines is reasonably necessary in connection with the administration of this Agreement).
SECTION 3.4. Commitment Fees. Subject to clause 10.1 of the Novation Agreement, the Borrower agrees to pay to the Facility Agent for the account of each Lender a commitment fee (the “Commitment Fee”) on its daily unused portion of Maximum Loan Amount (as such amount may be
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adjusted from time to time), for the period commencing on the Signing Date and continuing through the earliest to occur (the “Commitment Fee Termination Date”) of (i) the Actual Delivery Date, (ii) the date upon which the Facility Agent has provided the Borrower with written notice that the Lenders will not advance the Loan because the Commitments have been terminated pursuant to Section 8.2 or 8.3, (iii) the Commitment Termination Date and (iv) the date the Commitments shall have been terminated in full pursuant to clause 10.2 of the Novation Agreement.
SECTION 3.4.1. Payment. The Commitment Fee shall be payable by the Borrower to the Facility Agent for the account of each Lender six-monthly in arrears, with the first such payment (the “First Commitment Fee Payment”) to be made on the day falling six months following the Signing Date and the final such payment to be made on the Commitment Fee Termination Date (each date on which a Commitment Fee payment is required to be made in accordance with this Section 3.4.1 referred to herein as a “Commitment Fee Payment Date”). The Commitment Fee shall be in the amount in EUR equal to the product of the Applicable Commitment Rate, multiplied by, for each day elapsed since the preceding Commitment Fee Payment Date (or, in the case of the First Commitment Fee Payment, the Signing Date), 75% of the daily unused portion of Maximum Loan Amount (as such amount may be adjusted from time to time), divided by 360 days.
SECTION 3.5. Other Fees. The Borrower agrees to pay to the Facility Agent and the ECA Agent the agreed-upon fees set forth in the Fee Letters on the dates and in the amounts set forth therein.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If after the Signing Date the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other governmental authority having jurisdiction over such Lender asserts that it is unlawful for such Lender to make, continue or maintain its portion of the Loan where the relevant Lender has funded itself in the interbank market at a rate based on the LIBO Rate, the obligation of such Lender to make, continue or maintain its portion of the Loan shall, upon notice thereof to the Borrower, the Facility Agent and each other Lender, forthwith be suspended until the circumstances causing such suspension no longer exist, provided that such Lender’s obligation to make, continue and maintain its portion of the Loan hereunder shall be automatically converted into an obligation to make, continue and maintain its portion of the Loan bearing interest at a rate to be negotiated between such Lender and the Borrower that is the equivalent of the sum of the LIBO Rate for the relevant Interest Period plus the Floating Rate Margin.
SECTION 4.2. Deposits Unavailable. If any Lender has funded itself in the interbank market and the Facility Agent shall have determined that:
a)    Dollar deposits in the relevant amount and for the relevant Interest Period are not available to each Reference Bank in its relevant market, or
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b)    by reason of circumstances affecting the Reference Banks’ relevant markets, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate loans for the relevant Interest Period, or
c)    the cost to Lenders that in the aggregate hold more than 50% of the aggregate outstanding principal amount of the Loan then held by Lenders of obtaining matching deposits in the relevant interbank market for the relevant Interest Period would be in excess of the LIBO Rate, (provided, that no Lender may exercise its rights under this Section 4.2 c) for amounts up to the difference between such Lender’s cost of obtaining matching deposits on the date such Lender becomes a Lender hereunder less the LIBO Rate on such date),
then the Facility Agent shall give notice of such determination (hereinafter called a “Determination Notice”) to the Borrower and each of the Lenders. The Borrower, the Lenders and the Facility Agent shall then negotiate in good faith in order to agree upon a mutually satisfactory interest rate and interest period (or interest periods) to be substituted for those which would otherwise have applied under this Agreement. If the Borrower, the Lenders and the Facility Agent are unable to agree upon an interest rate (or rates) and interest period (or interest periods) prior to the date occurring fifteen (15) Business Days after the giving of such Determination Notice, the Facility Agent shall (after consultation with the Lenders) set an interest rate and an interest period (or interest periods), in each case to take effect at the end of the Interest Period current at the date of the Determination Notice, which rate (or rates) shall be equal to the sum of the Floating Rate Margin and the weighted average of the corresponding interest rates at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period on Thomson Reuters’ pages KLIEMMM, GARBIC01 and FINA01 (or such other pages as may replace Thomson Reuters’ pages KLIEMMM, GARBIC01 or FINA01 on Thomson Reuters’ service) (or, in the case of clause (c) above, the lesser of (x) the respective cost to the Lenders of funding the respective portions of the Loan held by the Lenders and (y) such weighted average). The Facility Agent shall furnish a certificate to the Borrower as soon as reasonably practicable after the Facility Agent has given such Determination Notice setting forth such rate(s). In the event that the circumstances described in this Section 4.2 shall extend beyond the end of an interest period agreed or set pursuant hereto, the foregoing procedure shall be repeated as often as may be necessary.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. If after the Signing Date a change in any applicable treaty, law, regulation or regulatory requirement or in the interpretation thereof or in its application to the Borrower, or if compliance by any Lender with any applicable direction, request, requirement or guideline (whether or not having the force of law) of any governmental or other authority including, without limitation, any agency of the European Union or similar monetary or multinational authority insofar as it may be changed or imposed after the date hereof, shall:
a)    subject any Lender to any taxes, levies, duties, charges, fees, deductions or withholdings of any nature with respect to its portion of the Loan or any part thereof imposed, levied, collected, withheld or assessed by any jurisdiction or any political subdivision or taxing authority thereof (other than taxation on overall net income and, to the extent such taxes are described in Section 4.6, withholding taxes); or
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b)    change the basis of taxation to any Lender (other than a change in taxation on the overall net income of any Lender) of payments of principal or interest or any other payment due or to become due pursuant to this Agreement; or
c)    impose, modify or deem applicable any reserve or capital adequacy requirements (other than the increased capital costs described in Section 4.5 and the reserve costs described in Section 4.7) or other banking or monetary controls or requirements which affect the manner in which a Lender shall allocate its capital resources to its obligations hereunder or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender (provided that such Lender shall, unless prohibited by law, allocate its capital resources to its obligations hereunder in a manner which is consistent with its present treatment of the allocation of its capital resources); or
d)    impose on any Lender any other condition affecting its portion of the Loan or any part thereof,
and the result of any of the foregoing is either (i) to increase the cost to such Lender of making its portion of the Loan or maintaining its portion of the Loan or any part thereof, (ii) to reduce the amount of any payment received by such Lender or its effective return hereunder or on its capital or (iii) to cause such Lender to make any payment or to forego any return based on any amount received or receivable by such Lender hereunder, then and in any such case if such increase or reduction in the opinion of such Lender materially affects the interests of such Lender, (A) such Lender shall (through the Facility Agent) notify the Borrower of the occurrence of such event and use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the Fixed Rate) to designate a different Lending Office if the making of such a designation would avoid the effects of such law, regulation or regulatory requirement or any change therein or in the interpretation thereof and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (B) the Borrower shall forthwith upon such demand pay to the Facility Agent for the account of such Lender such amount as is necessary to compensate such Lender for such additional cost or such reduction and ancillary expenses, including taxes, incurred as a result of such adjustment. Such notice shall (i) describe in reasonable detail the event leading to such additional cost, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such additional cost, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such 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. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstance giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive
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effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such cost or reductions and of such Lender’s intention to claim compensation therefor.
It is acknowledged that the Borrower shall have no liability to compensate any Lender under this Section for amounts of increased costs that accrue before the Effective Time on the Actual Delivery Date (with any such amounts arising before the Effective Time being the responsibility of the Original Borrower).
SECTION 4.4. Funding Losses.
SECTION 4.4.1. Indemnity. In the event any Lender shall incur any loss or expense (for the avoidance of doubt excluding loss of profit) by reason of the liquidation or re-employment (at not less than the market rate) of deposits or other funds acquired by such Lender, to make, continue or maintain any portion of the principal amount of its portion of the Loan as a result of:
i)    any repayment or prepayment or acceleration of the principal amount of such Lender’s portion of the Loan, other than any repayment made on the date scheduled for such repayment or (if the Floating Rate applies) any repayment or prepayment or acceleration on a date other than the scheduled last day of an Interest Period or otherwise scheduled date for repayment or payment; or
ii)    the relevant portion of the Loan not being made in accordance with the Loan Request therefor due to the fault of the Borrower or as a result of any of the conditions precedent set forth in clause 6.1(c) of the Novation Agreement and Article V not being satisfied,
(a “Funding Losses Event”) then, upon the written notice of such Lender to the Borrower (with a copy to the Facility Agent), the Borrower shall, within three (3) days of its receipt thereof:
a)    if at that time interest is calculated at the Floating Rate on such Lender’s portion of the Loan, pay directly to the Facility Agent for the account of such Lender an amount equal to the amount by which:
(i)    interest calculated at the Floating Rate (excluding the Floating Rate Margin) which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event for the period from the date of receipt of any part of its share in the Loan to the last day of the applicable Interest Period,
exceeds:
(ii)    the amount which such Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Interest Period; or
b)    if at that time interest is calculated at the Fixed Rate on such Lender’s portion of the Loan, pay to the Facility Agent the amount notified to it following the calculation referred to in the next paragraph.
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Since the Lenders commit themselves irrevocably to the French Authorities in charge of monitoring the Fixed Rate mechanism, any prepayment (whether voluntary, involuntary or mandatory, including following the acceleration of the Loan) will be subject to the mandatory payment by the Borrower of the amount calculated in liaison with the French Authorities two (2) Business Days prior to the prepayment date by taking into account the differential (the “Rate Differential”) between the Fixed Rate (but, for this purpose, not including the margin element of 0.45%) and the prevailing market yield (currently ISDAFIX) for each installment to be prepaid and applying such Rate Differential to the remaining residual period of such installment and discounting to the net present value as described below. Each of these Rate Differentials will be applied to the corresponding installment to be prepaid during the period starting on the date on which such prepayment is required to be made and ending on the original Repayment Date (as adjusted following any previous prepayments) for such installment and:
(A)     the net present value of each corresponding amount resulting from the above calculation will be determined at the corresponding market yield; and
(B)     if the cumulated amount of such present values is negative, no amount shall be due to the Borrower or from the Borrower.
Such written notice shall include calculations in reasonable detail setting forth the loss or expense to such Lender.
SECTION 4.4.2. Exclusion In the event that a Lender’s wilful misconduct or gross negligence has caused the loss or cancellation of the BpiFAE Insurance Policy, the Borrower shall not be liable to indemnify that Lender under Section 4.4.1 for its loss or expense arising due to the occurrence of the Prepayment Event referred to in Section 9.1.9.
SECTION 4.5. Increased Capital Costs. If after the Signing Date any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority increases the amount of capital required to be maintained by any Lender or any Person controlling such Lender, and the rate of return on its or such controlling Person’s capital as a consequence of its Commitment or its portion of the Loan made by such Lender is reduced to a level below that which such Lender or such controlling Person would have achieved but for the occurrence of any such change in circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, the Borrower shall immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. Any such notice shall (i) describe in reasonable detail the capital adequacy requirements which have been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such lowered return, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such Lender’s standard method of calculating such amount, (v) certify that such request for such additional
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amounts is consistent with its treatment of other borrowers that are subject to similar provisions and (vi) certify that, to the best of its knowledge, such change in circumstances is of general application to the commercial banking industry in the jurisdictions in which such Lender does business. In determining such amount, such Lender may use any method of averaging and attribution that it shall, subject to the foregoing sentence, deem applicable. Each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the Fixed Rate) to designate a different Lending Office if the making of such a designation would avoid such reduction in such rate of return and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstance giving rise to such reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender’s intention to claim compensation therefor.
It is acknowledged that the Borrower shall have no liability to compensate any Lender under this Section for reduced returns that accrue before the Effective Time on the Actual Delivery Date (with any compensation liability to the Lenders arising before the Effective Time being the responsibility of the Original Borrower).
SECTION 4.6. Taxes. All payments by any Obligor of principal of, and interest on, the Loan and all other amounts payable under any Loan Document shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes imposed on or measured by any Lender’s net income or receipts of such Lender and franchise taxes imposed in lieu of net income taxes or taxes on receipts, by the jurisdiction under the laws of which such Lender is organized or any political subdivision thereof or the jurisdiction of such Lender’s Lending Office or any political subdivision thereof or any other jurisdiction unless such net income taxes are imposed solely as a result of the applicable Obligor’s activities in such other jurisdiction, and any taxes imposed under FATCA (such non-excluded items being called “Covered Taxes”). In the event that any withholding or deduction from any payment to be made by an Obligor under any Loan Document is required in respect of any Covered Taxes pursuant to any applicable law, rule or regulation, then the Borrower will:
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a)    pay directly to the relevant authority the full amount required to be so withheld or deducted;
b)    promptly forward to the Facility Agent an official receipt or other documentation satisfactory to the Facility Agent evidencing such payment to such authority; and
c)    pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
Moreover, if any Covered Taxes are directly asserted against the Facility Agent or any Lender with respect to any payment received or paid by the Facility Agent or such Lender hereunder, the Facility Agent or such Lender may pay such Covered Taxes and the Borrower will promptly pay such additional amounts (including any penalties, interest or expenses) as is necessary in order that the net amount received by such person after the payment of such Covered Taxes (including any Covered Taxes on such additional amount) shall equal the amount such person would have received had no such Covered Taxes been asserted.
Any Lender claiming any additional amounts payable pursuant to this Section agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the Fixed Rate) to change the jurisdiction of its Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
If the Borrower fails to pay any Covered Taxes when due to the appropriate taxing authority or fails to remit to the Facility Agent for the account of the respective Lenders the required receipts or other required documentary evidence, the Borrower shall indemnify the Lenders for any incremental withholding Covered Taxes, interest or penalties that may become payable by any Lender as a result of any such failure (so long as such amount did not become payable as a result of the failure of such Lender to provide timely notice to the Borrower of the assertion of a liability related to the payment of Covered Taxes). For purposes of this Section 4.6, a distribution hereunder by the Facility Agent or any Lender to or for the account of any Lender shall be deemed a payment by the Borrower.
If any Lender is entitled to any refund, credit, deduction or other reduction in tax by reason of any payment made by the Borrower in respect of any Covered Tax under this Section 4.6 or by reason of any payment made by the Borrower pursuant to Section 4.3, such Lender shall use reasonable efforts to obtain such refund, credit, deduction or other reduction and, promptly after receipt thereof, will pay to the Borrower such amount (plus any interest received by such Lender in connection with such refund, credit, deduction or reduction) as is equal to the net after-tax value to such Lender of such part of such refund, credit, deduction or reduction as such Lender reasonably determines is allocable to such Covered Tax or such payment (less out-of-pocket expenses incurred by such Lender), provided that no Lender shall be obligated to disclose to the Borrower any information regarding its tax affairs or tax computations.
Each Lender (and each Participant) agrees with the Borrower and the Facility Agent that it will (i) in the case of a Lender or a Participant organized under the laws of a jurisdiction other than the United States (a) provide to the Facility Agent and the Borrower an appropriately
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executed copy of Internal Revenue Service Form W-8ECI certifying that any payments made to or for the benefit of such Lender or such Participant are effectively connected with a trade or business in the United States (or alternatively, an Internal Revenue Service Form W-8BEN claiming the benefits of a tax treaty, but only if the applicable treaty described in such form provides for a complete exemption from U.S. federal income tax withholding), or any successor form, on or prior to the date hereof (or, in the case of any Assignee Lender or Participant, on or prior to the date of the relevant assignment or participation), in each case attached to an Internal Revenue Service Form W-8IMY, if appropriate, (b) notify the Facility Agent and the Borrower if the certifications made on any form provided pursuant to this paragraph are no longer accurate and true in all material respects and (c) without prejudice to its obligations under Section 4.13, provide such other tax forms or other documents as shall be prescribed by applicable law, if any, or as otherwise reasonably requested, to demonstrate, to the extent applicable, that payments to such Lender Party (or Participant) hereunder are exempt from withholding under FATCA, and (ii) in all cases, provide such forms, certificates or other documents, as and when reasonably requested by the Borrower, necessary to claim any applicable exemption from, or reduction of, Covered Taxes or any payments made to or for benefit of such Lender Party or such Participant, provided that the Lender Party or Participant is legally able to deliver such forms, certificates or other documents. For any period with respect to which a Lender (or Assignee Lender or Participant) has failed to provide the Borrower with the foregoing forms (other than if such failure is due to a change in law occurring after the date on which a form originally was required to be provided (which, in the case of an Assignee Lender, would be the date on which the original assignor was required to provide such form) or if such form otherwise is not required hereunder) such Lender (or Assignee Lender or Participant) shall not be entitled to the benefits of this Section 4.6 with respect to Covered Taxes imposed by reason of such failure.
All fees and expenses payable pursuant to Section 11.3 shall be paid together with value added tax or any similar tax (if any) properly chargeable thereon. Any value added tax chargeable in respect of any services supplied by a Lender or an Agent under this Agreement shall, on delivery of the value added tax invoice, be paid in addition to any sum agreed to be paid hereunder.
SECTION 4.7. Reserve Costs. Without in any way limiting the Borrower’s obligations under Section 4.3, the Borrower shall, with effect from the Effective Time, pay to the Facility Agent for the account of each Lender on the last day of each Interest Period, so long as the relevant Lending Office of such Lender is required to maintain reserves against “Eurocurrency liabilities” under Regulation D of the F.R.S. Board, upon notice from such Lender, an additional amount equal to the product of the following for the Loan for each day during such Interest Period:
(i)    the principal amount of the Loan outstanding on such day; and
(ii)    the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on the Loan for such Interest Period as provided in this Agreement (less, if applicable, the Floating Rate Margin) and the denominator of which is one minus any increase after the Signing Date in the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender minus (y) such numerator; and
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(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 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the Fixed Rate) to avoid the requirement of maintaining such reserves (including by designating a different Lending Office) if such efforts would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 4.8. Payments, Computations, etc.
a)    Unless otherwise expressly provided, all payments by an Obligor pursuant to any Loan Document shall be made by such Obligor to the Facility Agent for the pro rata account of the Lenders entitled to receive such payment. All such payments required to be made to the Facility Agent shall be made, without set-off, deduction or counterclaim, not later than 11:00 a.m., New York time, on the date due, in same day or immediately available funds through the New York Clearing House Interbank Payments System (or such other funds as may be customary for the settlement of international banking transactions in Dollars), to such account as the Facility Agent shall specify from time to time by notice to the Borrower. Funds received after that time shall be deemed to have been received by the Lenders on the next succeeding Business Day.
b)    Each Lender hereby instructs the Facility Agent, with respect to any portion of the Loan held by such Lender, to pay directly to such Lender interest thereon at the Fixed Rate or (if the proviso to Section 5.1.10 applies) the Floating Rate, on the basis that (if the Fixed Rate applies) such Lender will, where amounts are payable to Natixis by that Lender under the Interest Stabilisation Agreement, account directly to Natixis for any such amounts payable by that Lender under the Interest Stabilisation Agreement to which such Lender is a party.
c)    The Facility Agent shall promptly (but in any event on the same Business Day that the same are received or, as contemplated in clause (a) of this Section, deemed received) remit in same day funds to each Lender its share, if any, of such payments received by the Facility Agent for the account of such Lender without any set-off, deduction or counterclaim. All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days. Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing interest and fees, if any, in connection with such payment.
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SECTION 4.9. Replacement Lenders, etc. If the Borrower shall be required to make any payment to any Lender pursuant to Section 4.2(c), 4.3, 4.4, 4.5, 4.6 or 4.7, the Borrower shall be entitled at any time (so long as no Default and no Prepayment Event shall have occurred and be continuing) within 180 days after receipt of notice from such Lender of such required payment to (a) terminate such Lender’s Commitment (where upon the Percentage of each other Lender shall automatically be adjusted to an amount equal to such Lender’s ratable share of the remaining Commitments), (b) prepay the affected portion of such Lender’s Loan in full, together with accrued interest thereon through the date of such prepayment (provided that the Borrower shall not terminate any Lender’s Commitment pursuant to clause (a) or prepay any such Lender pursuant to this clause (b) without replacing such Lender pursuant to the following clause (c) until a 30-day period shall have elapsed during which the Borrower and the Facility Agent shall have attempted in good faith to replace such Lender), and/or (c) replace such Lender with another financial institution reasonably acceptable to the Facility Agent and (if the Fixed Rate applies) Natixis DAI, provided that (i) each such transfer shall be either a transfer of all of the rights and obligations of the transferring Lender under this Agreement or a transfer of a portion of such rights and obligations made concurrently with another such transfer or other such transfers that together cover all of the rights and obligations of the transferring Lender under this Agreement and (ii) no Lender shall be obligated to make any such transfer as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from either the Borrower or one or more Assignee Lenders in an aggregate amount at least equal to the aggregate outstanding principal amount of the Loan owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement. Each Lender represents and warrants to the Borrower that, as of the Signing Date (or, with respect to any Lender not a party hereto on the Signing Date, on the date that such Lender becomes a party hereto), there is no existing treaty, law, regulation, regulatory requirement, interpretation, directive, guideline, decision or request pursuant to which such Lender would be entitled to request any payments under any of Sections 4.3, 4.4, 4.5, 4.6 and 4.7 to or for account of such Lender.
SECTION 4.10. Sharing of Payments.
SECTION 4.10.1. Payments to Lenders. If a Lender (a "Recovering Lender") receives or recovers any amount from an Obligor other than in accordance with Section 4.8 (Payments, Computations, etc.) (a "Recovered Amount") and applies that amount to a payment due under the Loan Documents then:
a)    the Recovering Lender shall, within three (3) Business Days, notify details of the receipt or recovery to the Facility Agent;
b)    the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Lender would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with the
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said Section 4.8, without taking account of any taxes which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
c)    the Recovering Lender shall, within three (3) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Lender as its share of any payment to be made, in accordance with any applicable provisions of this Agreement.
SECTION 4.10.2. Redistribution of payments. The Facility Agent shall treat the Sharing Payment as if it had been paid by the Borrower and distribute it between the Lenders (other than the Recovering Lender) (the "Sharing Lenders") in accordance with the provisions of this Agreement towards the obligations of the Borrower to the Sharing Lenders.
SECTION 4.10.3. Recovering Lender's rights. On a distribution by the Facility Agent under Section 4.10.2 of a payment received by a Recovering Lender from the relevant Obligor, as between that Obligor and the Recovering Lender, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by the relevant Obligor.
SECTION 4.10.4. Reversal of redistribution If any part of the Sharing Payment received or recovered by a Recovering Lender becomes repayable and is repaid by that Recovering Lender, then:
a)    each Sharing Lender shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Lender an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Sharing Payment which that Recovering Lender is required to pay) (the "Redistributed Amount"); and
b)    as between the relevant Obligor and each relevant Sharing Lender, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by the relevant Obligor.
SECTION 4.10.5. Exceptions.
a)    This Section 4.10 shall not apply to the extent that the Recovering Lender would not, after making any payment pursuant to this Section 4.10, have a valid and enforceable claim against the relevant Obligor.
b)    A Recovering Lender is not obliged to share with any other Lender any amount which the Recovering Lender has received or recovered as a result of taking legal or arbitration proceedings, if:
(i)    it notified the other Lender of the legal or arbitration proceedings; and
(ii)    the other Lender had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
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SECTION 4.11. Set-off. Upon the occurrence and during the continuance of an Event of Default or a Prepayment Event, each Lender shall have, to the extent permitted by applicable law, the right to appropriate and apply to the payment of the Obligations then due and owing to it any and all balances, credits, deposits, accounts or moneys of any Obligor 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 applicable Obligor and the Facility Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of set-off under applicable law or otherwise) which such Lender may have.
SECTION 4.12. Use of Proceeds. The Borrower shall apply the proceeds of the Loan made available to the Borrower in respect of the Additional Advances for the purpose of making payments of, or reimbursing the Borrower for payments already made for, the amounts referred to in clauses 5.2, 5.3 and/or 5.4 of the Novation Agreement and, without limiting the foregoing, no proceeds of the Loan will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or any “margin stock”, as defined in F.R.S. Board Regulation U.
SECTION 4.13. FATCA Information.
a)    Subject to paragraph c) below, each party (other than the Borrower) shall, within ten Business Days of a reasonable request by another party (other than the Borrower):
(i)    confirm to that other party whether it is:
(A)    a FATCA Exempt Party; or
(B)    not a FATCA Exempt Party;
(ii)    supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other party's compliance with FATCA;
(iii)    supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other party's compliance with any other law, regulation, or exchange of information regime.
b)    If a party confirms to another party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.
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c)    Paragraph a) above shall not oblige any Lender or the Facility Agent to do anything, and paragraph a)(iii) above shall not oblige any other party to do anything, which would or might in its reasonable opinion constitute a breach of:
(i)    any law or regulation;
(ii)    any fiduciary duty; or
(iii)    any duty of confidentiality.
d)    If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such party shall be treated for the purposes of the Loan Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.
e)    Each party may make a FATCA Deduction from a payment under this Agreement that it is required to be made by FATCA, and any payment required in connection with that FATCA Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
SECTION 4.14. Resignation of the Facility Agent. The Facility Agent shall resign (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent) if, either:
a)    the Facility Agent fails to respond to a request under Section 4.13 and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
b)    the information supplied by the Facility Agent pursuant to Section 4.13 indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party; or
c)    the Facility Agent notifies the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
and (in each case) a Lender reasonably believes that a party to this Agreement will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and that Lender, by notice to the Facility Agent, requires it to resign.
ARTICLE V

CONDITIONS TO BORROWING
SECTION 5.1. Advance of the Loan. The obligation of the Lenders to fund the relevant portion of the Loan to be made available on the Actual Delivery Date shall be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in this Section 5.1. The Facility Agent
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shall advise the Lenders of the satisfaction of the conditions precedent set forth in this Section 5.1 prior to funding on the Actual Delivery Date.
SECTION 5.1.1. Resolutions, etc. The Facility Agent shall have received from the Borrower:
a)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorized to act with respect to this Agreement and each other Loan Document and as to the truth and completeness of the attached:
(x) resolutions of its Board of Directors then in full force and effect authorizing the execution, delivery and performance of this Agreement and each other Loan Document, and
(y) Organic Documents of the Borrower,
and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the Borrower canceling or amending such prior certificate; and
b)    a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the Borrower.
SECTION 5.1.2. Opinions of Counsel. The Facility Agent shall have received opinions, addressed to the Facility Agent, the Security Trustee (in relation to a) and b) below) and each Lender from:
a)    Watson Farley & Williams LLP, counsel to the Borrower, as to Liberian Law, covering the matters set forth in Exhibit B-1 hereto;
b)    Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders, covering the matters set forth in Exhibit B-2 hereto and, if the BpiFAE Insurance Policy is to be re-issued or replaced on or about the Actual Delivery Date, Exhibit B-3 hereto; and
c)    Clifford Chance US LLP, United States tax counsel to the Facility Agent for the benefit of the Lenders, covering the matters set forth in Exhibit B-4 hereto,
each such opinion to be updated to take into account all relevant and applicable Loan Documents at the time of issue thereof.
SECTION 5.1.3. BpiFAE Insurance Policy. The Facility Agent or the ECA Agent shall have received the BpiFAE Insurance Policy duly issued and BpiFAE shall not have, prior to the advance of the Loan, delivered to the Facility Agent or the ECA Agent any notice seeking the cancellation, suspension or termination of the BpiFAE Insurance Policy or the suspension of the drawing of the Additional Advances under this Agreement.
SECTION 5.1.4. Closing Fees, Expenses, etc. The Facility Agent shall have received for its own account, or for the account of each Lender or BpiFAE, as the case may be, all fees that the Borrower shall have agreed in writing to pay to the Facility Agent (whether for its own account or for the account of any
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of the Lenders) that are due and owing as of the date of such funding and all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent and the BpiFAE Premium) required to be paid by the Borrower pursuant to Section 11.3 or that the Borrower has otherwise agreed in writing to pay to the Facility Agent, in each case on or prior to the date of such funding.
SECTION 5.1.5. Compliance with Warranties, No Default, etc. Both before and after giving effect to the funding of the Loan the following statements shall be true and correct:
a)    the representations and warranties set forth in Article VI (excluding, however, those set forth in Section 6.10) shall be true and correct in all material respects except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, with the same effect as if then made; and
b)    no Default and no Prepayment Event and no event which (with notice or lapse of time or both) would become a Prepayment Event shall have then occurred and be continuing.
SECTION 5.1.6. Loan Request. The Facility Agent shall have received a Loan Request duly executed by the Borrower together with:
a)    where an Additional Advance is requested in respect of the Non-Yard Costs, the Delivery Non-Yard Costs Certificate;
b)    certified as true (by the Builder) copies of the invoice and supporting documents received by the Builder from the Borrower pursuant to Appendix C of the Construction Contract in relation to the Paid Non-Yard Costs to be financed as at the time of issue and a declaration from the Borrower in substantially the form set forth in Exhibit D hereto that the requirements for a minimum 10% French content in respect of Non-Yard Costs have been fulfilled;
c)    a copy of the final commercial invoice from the Builder showing the amount of the Contract Price (including the Non-Yard Costs and the Other Basic Contract Price Increases) and the portion thereof payable to the Builder on the Actual Delivery Date under the Construction Contract; and
d)    copies of the wire transfers for all payments by the Borrower to the Builder under the Construction Contract in respect of the Basic Contract Price to the extent not already provided as part of the drawdown conditions for drawdowns made by the Original Borrower.
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations. The Facility Agent shall have received the documentation and other information referred to in clause 5.6 of the Novation Agreement.
SECTION 5.1.8. Protocol of delivery. The Facility Agent shall have received a copy of the protocol of delivery and acceptance under the Construction
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Contract duly signed by the Builder and the Borrower or the Nominated Owner to be notified to the Facility Agent.
SECTION 5.1.9. Title to Purchased Vessel. The Facility Agent shall have received evidence that the Purchased Vessel is legally and beneficially owned by the Borrower or the Nominated Owner (as the case may be), free of all recorded Liens, other than Liens permitted by Section 7.2.3 and, to the extent not yet discharged, the Mortgage (as defined in the Novation Agreement).
SECTION 5.1.10. Interest Stabilisation. The ECA Agent shall have received a duly executed fixed rate approval from Natixis DAI issued to the Lenders in respect of the Fixed Rate applicable to the Loan and shall have been informed by the French Authorities of the conditions of the interest make-up mechanisms (stabilisation du taux d'intérêt) applicable to the Loan under the applicable Interest Stabilisation Agreement in respect of the Lenders, such conditions to specify, among other things, that the Fixed Rate has been retained under the interest make-up mechanisms applicable to the Loan.
In relation to Section 5.1.10, if a Lender (an “Ineligible Lender”) becomes ineligible or otherwise ceases to be a party to an Interest Stabilisation Agreement, it shall promptly upon becoming aware thereof (and by no later than 15 Business Days before the anticipated Actual Delivery Date) notify the Borrower, the ECA Agent and the Facility Agent.
Following receipt of such a notice, the ECA Agent (through the Facility Agent) shall give to the Borrower at least 10 Business Days’ prior notice stating if the condition precedent in Section 5.1.10 will not be satisfied due to the Ineligible Lender but would be satisfied by the replacement of the Ineligible Lender as set out below, with such replacement to take effect for the purpose of this Section on the Actual Delivery Date.
On its receipt of such notice from the ECA Agent, the Borrower shall be entitled, at any time thereafter and without prejudice to any rights and remedies it may have against such Ineligible Lender pursuant to Section 3.3.3,to replace such Ineligible Lender with another bank or financial institution reasonably acceptable to the Facility Agent, BpiFAE and Natixis DAI with effect from the Actual Delivery Date, provided that (i) each such transfer shall be either a transfer of all of the rights and obligations of the Ineligible Lender under this Agreement or a transfer of a portion of such rights and obligations made concurrently with another such transfer or other such transfers that together cover all of the rights and obligations of the Ineligible Lender under this Agreement and (ii) no Lender shall be obligated to make effective any such transfer as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from one or more Assignee Lenders in an aggregate amount equal to the aggregate outstanding principal amount of the portion of the Novated Loan Balance which, immediately following the Effective Time, would have been owing to such Lender pursuant to Section 2.3(a) had that Lender not been replaced prior to the Effective Time. The ECA Agent and the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Ineligible Lender, and taking such other steps that may be reasonably required and which are within the control of the ECA Agent and the Facility Agent to assist with the satisfaction of the condition precedent in Section 5.1.10 prior to funding on the Actual Delivery Date.
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Provided however the Borrower shall be entitled, without prejudice to its rights and remedies pursuant to Section 3.3.3, to elect that if at the Actual Delivery Date the condition precedent in Section 5.1.10 is not satisfied the Floating Rate should apply to the Loan, such election to be made by notice in writing to the Facility Agent not less than five (5) Business Days prior to the anticipated Actual Delivery Date in which event, subject to the approval of BpiFAE, the Loan shall bear interest at the Floating Rate and the condition set out in Section 5.1.10 shall be deemed waived by the Lenders.
The ECA Agent (through the Facility Agent) shall, promptly after the Borrower’s request, advise the Borrower whether it is aware (based solely on information obtained from Natixis DAI and other French Authorities and/or received from the Lenders at the time of any such request and without any liability on the ECA Agent for the accuracy of that information) that the condition precedent in Section 5.1.10 will not or may not be satisfied as required by Section 5.1.10.
SECTION 5.1.11. Escrow Account Security. The Facility Agent shall have received the Escrow Account Security duly executed by the Borrower together with a duly executed notice of charge and acknowledgement thereto executed by the Borrower and the Escrow Account Bank respectively.
SECTION 5.1.12. LNG Change Order
The Facility Agent shall have received, not later than one month prior to the Actual Delivery Date (or such shorter period as may be agreed by the Lenders), a written confirmation from the Borrower as to whether the specifications of the Vessel will, as at the Actual Delivery Date, reflect the terms of the LNG Change Order implementing the LNG Solution (as defined in, or by reference to, addendum no. 13 to the Construction Contract).
ARTICLE VI

REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Facility Agent to enter into this Agreement and to make the Loan hereunder, the Borrower represents and warrants to the Facility Agent and each Lender as set forth in this Article VI as of the Actual Delivery Date and on the Guarantee Release Date (in each case except as otherwise stated).
SECTION 6.1. Organization, etc. The Borrower is a corporation validly organized and existing and in good standing under the laws of its jurisdiction of incorporation; the Borrower is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the nature of its business requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect; and the Borrower has full power and authority, has taken all corporate action and holds all governmental and creditors’ licenses, permits, consents and other approvals necessary to enter into each Loan Document to which it is a party 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
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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 except as would not reasonably be expected to result in a Material Adverse Effect;
c)    contravene any court decree or order binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect;
d)    contravene any contractual restriction binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect; or
e)    result in, or require the creation or imposition of, any Lien on any of the Borrower’s properties except as would not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or other Person is required for the due execution, delivery or performance by the Borrower of this Agreement or any other Loan Document (except for authorizations or approvals not required to be obtained on or prior to the Actual Delivery Date or that have been obtained or actions not required to be taken on or prior to the Actual Delivery Date or that have been taken). The Borrower holds all governmental licenses, permits and other approvals required to conduct its business as conducted by it on the Actual Delivery Date, except to the extent the failure to hold any such licenses, permits or other approvals would not have a Material Adverse Effect.
SECTION 6.4. Compliance with Environmental Laws. The Borrower is in compliance with all applicable Environmental Laws, except to the extent that the failure to so comply would not have a Material Adverse Effect.
SECTION 6.5. Validity, etc. This Agreement constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles.
SECTION 6.6. No Default, Event of Default or Prepayment Event. No Default, Event of Default or Prepayment Event has occurred and is continuing.
SECTION 6.7. Litigation. There is no action, suit, litigation, investigation or proceeding pending or, to the knowledge of the Borrower, threatened against the Borrower, that (i) except as set forth in filings made by the Borrower with the SEC in the Borrower’s reasonable opinion might
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reasonably be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries (taken as a whole) (collectively, “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation of the transactions contemplated hereby.
SECTION 6.8. The Purchased Vessel. Immediately following the delivery of the Purchased Vessel to the Borrower under the Construction Contract, the Purchased Vessel will be:
a)    legally and beneficially owned by the Borrower or one of the Borrower’s wholly owned Subsidiaries,
b)    registered in the name of the Borrower or one of the Borrower’s wholly owned Subsidiaries under the Bahamian or Maltese flag or such other flag as the parties may mutually agree,
c)    classed as required by Section 7.1.4(b),
d)    free of all recorded Liens, other than Liens permitted by Section 7.2.3,
e)    insured against loss or damage in compliance with Section 7.1.5, and
f)    exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries.
SECTION 6.9. Obligations rank pari passu; Liens.
a)    The Obligations rank at least pari passu in right of payment and in all other respects with all other unsecured unsubordinated Indebtedness of the Borrower other than Indebtedness preferred as a matter of law.
b)    As at the date of this Agreement, the provisions of this Agreement which permit or restrict the granting of Liens are no less favorable than the provisions permitting or restricting the granting of Liens in any other agreement entered into by the Borrower with any other person providing financing or credit to the Borrower.
SECTION 6.10. Withholding, etc.. As of the Signing Date, no payment to be made by the Borrower under any Loan Document is subject to any withholding or like tax imposed by any Applicable Jurisdiction.
SECTION 6.11. No Filing, etc. Required. No filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of any Applicable Jurisdiction to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Agreement or the other Loan Documents (except for filings, recordings, registrations or payments not required to be made on or prior to the Actual Delivery Date or that have been made).
SECTION 6.12. No Immunity. The Borrower is subject to civil and commercial law with respect to the Obligations. Neither the Borrower nor any of its properties or revenues is entitled to any right of immunity in any
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Applicable Jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to the Obligations (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted or exist).
SECTION 6.13. Investment Company Act. The Borrower is not required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
SECTION 6.14. Regulation U. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of the Loan will be used for a purpose which violates, or would be inconsistent with, F.R.S. Board Regulation U. Terms for which meanings are provided in F.R.S. Board Regulation U or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
SECTION 6.15. Accuracy of Information. The financial and other information (other than financial projections or other forward looking information) furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Borrower, true and correct and contains no misstatement of a fact of a material nature. All financial projections, if any, that have been furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with this Agreement have been or will be prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the projections will be realized). All financial and other information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Borrower in good faith.
SECTION 6.16. Compliance with Laws. The Borrower is in compliance with all applicable laws, rules, regulations and orders, except to the extent that the failure to so comply does not and could not reasonably be expected to have a Material Adverse Effect, and the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The Borrower and its Subsidiaries and, to the knowledge of the Borrower, their respective officers, employees, directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions, in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in Borrower being designated as a Sanctioned Person. None of (a) the Borrower, any Subsidiary
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or to the knowledge of the Borrower or such Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.
ARTICLE VII

COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date (or, where applicable, from such time as may be stated in any applicable provision below) until all Commitments have terminated and all Obligations have been paid in full, the Borrower will perform the obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The Borrower will furnish, or will cause to be furnished, to the Facility Agent (with sufficient copies for distribution to each Lender) the following financial statements, reports, notices and information:
a)    as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, a copy of the Borrower’s report on Form 10-Q (or any successor form) as filed by the Borrower with the SEC for such Fiscal Quarter, containing unaudited consolidated financial statements of the Borrower for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
b)    as soon as available and in any event within 120 days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s annual report on Form 10-K (or any successor form) as filed by the Borrower with the SEC for such Fiscal Year, containing audited consolidated financial statements of the Borrower for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLP or another firm of independent public accountants of similar standing;
c)    together with each of the statements delivered pursuant to the foregoing clause (a) or (b), a certificate, executed by the chief financial officer, the treasurer or the corporate controller of the Borrower, showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year compliance with the covenants set forth in Section 7.2.4 (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
d)    as soon as possible after the occurrence of a Default or Prepayment Event, a statement of the chief financial officer of the Borrower setting forth details of such Default or Prepayment Event (as the case may be) and the action which the Borrower has taken and proposes to take with respect thereto;
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e)    as soon as the Borrower becomes aware thereof, notice of any Material Litigation except to the extent that such Material Litigation is disclosed by the Borrower in filings with the SEC;
f)    as soon as the Borrower becomes aware thereof, notice of any event which, in its reasonable opinion, would be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole;
g)    promptly after the sending or filing thereof, copies of all reports which the Borrower sends to all holders of each security issued by the Borrower, and all registration statements which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange;
h)    such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Facility Agent may from time to time reasonably request (including an update to any information and projections previously provided to the Lenders where these have been prepared and are available);
i)    during the Financial Covenant Waiver Period, as soon as available and in any event within respectively five (5) Business Days, ten (10) and forty (40) days (or such other period as BpiFAE may require from time to time) after the end of each monthly, bi-monthly and quarterly period (save that the period in respect of the final quarter of each Fiscal Year shall be sixty (60) days) from the Third Supplement Effective Date, the information required by the Debt Deferral Extension Regular Monitoring Requirements (as such information requirements may be amended on the basis set out in the Debt Deferral Extension Regular Monitoring Requirements) (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
j)    during the Financial Covenant Waiver Period, upon the request of the Facility Agent (acting on the instructions of BpiFAE), the Borrower and the Lenders shall provide information in form and substance satisfactory to BpiFAE regarding arrangements in respect of Indebtedness for borrowed money of the Group then existing or any such Indebtedness to be incurred by or made available to (as the case may be) the Group pursuant to binding commitments (such information to be provided to BpiFAE in accordance with terms of the Facility Agent’s request);
k)    during the period from the Novation Effective Time until the Covenant Modification Date, within five Business Days after the end of each month falling during such period, 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 immediately preceding month, compliance with the covenant set forth in Section 7.2.4(C); provided that if, during such period, the Borrower is not in compliance with the covenant set forth in Section 7.2.4(C) as of the last day of such month, the Borrower shall show compliance with such covenant as of the date such certificate is delivered;
l)    within 15 Business Days of the end of each month throughout the Early Warning Monitoring Period, a certificate, executed by the chief financial officer, the treasurer
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or the corporate controller of the Borrower, showing, as of the last day of the relevant month (i) the ratio of Adjusted Cash Balance as of the last day of the most recently completed month to the Monthly Outflow for the month most recently ended (and showing whether the Adjusted Cash Balance covers the Monthly Outflow for at least the subsequent five-month period), (ii) the Borrower’s Adjusted EBITDA After Principal and Interest for the two consecutive Last Reported Fiscal Quarters and (iii) in the case of the next certificate to be submitted immediately following the Borrower’s publishing of results for each Last Reported Fiscal Quarter, a comparison of Adjusted EBITDA After Principal and Interest with the figure from the corresponding Fiscal Quarter in the 2019 Fiscal Year (in each case in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
m)    on one occasion during each calendar year from the start of the Financial Covenant Waiver Period, the environmental plan of the Borrower (and including the Group’s carbon emissions for the past two years (calculated according to methodologies defined by the IMO or any other public methodology specified by the Borrower) as required to be published pursuant to each letter of the Borrower issued pursuant to the Third Novation Agreement Supplement;
n)    if the Borrower intends to make a Restricted Voluntary Prepayment, not less than ten Business Days prior to the anticipated making of a Restricted Voluntary Prepayment, the Borrower shall provide written notice to the Facility Agent of that Restricted Voluntary Prepayment (which notice shall set out in reasonable detail the terms of that Restricted Voluntary Prepayment); and
o)    during the Financial Covenant Waiver Period, as soon as the Borrower becomes aware thereof, notice (with a copy to the ECA Agent and BpiFAE) of any matter that has, or may, result in a breach of Section 7.1.10,
provided that information required to be furnished to the Facility Agent under subsections (a), (b), (g) and (m) of this Section 7.1.1 shall be deemed furnished to the Facility Agent when available free of charge on the Borrower’s website at http://www.rclinvestor.com or the SEC’s website at http://www.sec.gov.
SECTION 7.1.2. Approvals and Other Consents. The Borrower will obtain (or cause to be obtained) all such governmental licenses, authorizations, consents, permits and approvals as may be required for (a) each Obligor to perform its obligations under the Loan Documents to which it is a party and (b) the operation of the Purchased Vessel in compliance with all applicable laws, except, in each case, to the extent that failure to obtain (or cause to be obtained) such governmental licenses, authorizations, consents, permits and approvals would not be expected to have a Material Adverse Effect.
SECTION 7.1.3. Compliance with Laws, etc. The Borrower will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, except (other than as described in clauses (a) and (f) below) to the extent that the failure to so comply would not have a Material Adverse Effect, which compliance shall in any case include (but not be limited to):
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a)    in the case of the Borrower, the maintenance and preservation of its corporate existence (subject to the provisions of Section 7.2.6);
b)    in the case of the Borrower, maintenance of its qualification as a foreign corporation in the State of Florida;
c)    the payment, before the same become delinquent, of all taxes, assessments and governmental charges imposed upon it or upon its property, except to the extent being diligently contested in good faith by appropriate proceedings;
d)    compliance with all applicable Environmental Laws;
e)    compliance with all anti-money laundering and anti-corrupt practices laws applicable to the Borrower, including by not making or causing to be made any offer, gift or payment, consideration or benefit of any kind to anyone, either directly or indirectly, as an inducement or reward for the performance of any of the transactions contemplated by this agreement to the extent the same would be in contravention of such applicable laws; and
f)    the Borrower will maintain in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
SECTION 7.1.4. The Purchased Vessel. The Borrower will:
a)    cause the Purchased Vessel to be exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries, provided that the Borrower or such Subsidiary may charter out the Purchased Vessel (i) to entities other than the Borrower and the Borrower’s wholly owned Subsidiaries and (ii) on a time charter with a stated duration not in excess of one year;
b)    cause the Purchased Vessel to be kept in such condition as will entitle her to classification by a classification society of recognized standing;
c)    provide the following to the Facility Agent with respect to the Purchased Vessel:
(i)    evidence as to the ownership of the Purchased Vessel by the Borrower, the Nominated Owner or one of the Borrower’s wholly owned Subsidiaries; and
(ii)    evidence of no recorded Liens on the Purchased Vessel, other than Liens permitted pursuant to Section 7.2.3;
d)    within seven days after the Actual Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
(i)    evidence of the class of the Purchased Vessel; and
(ii)    evidence as to all required insurance being in effect with respect to the Purchased Vessel; and

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e)    on or before the later of (i) 31 July and (ii) 30 days after its own receipt of a Statement of Compliance in each calendar year, supply, or procure the supply, to the Facility Agent (for distribution to BpiFAE and the Lenders) (in each case at the cost of the Borrower) of all information necessary in order for any Lender to comply with its obligations under the Poseidon Principles in respect of the preceding year, including, without limitation, all ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI (as collated and reported to the Purchased Vessel’s flag state using the verification report submitted to that flag state) and any Statement of Compliance, in each case relating to the Purchased Vessel for the preceding calendar year, provided always that such information shall be confidential information for the purposes of Section 11.15 and, accordingly, no Lender shall publicly disclose such information with the identity of the Purchased Vessel or the Borrower (or, if applicable, the Borrower’s wholly owned Subsidiary that then owns the Purchased Vessel) without the prior written consent of the Borrower (it being expressly agreed however that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the relevant Lender’s portfolio climate alignment).
SECTION 7.1.5. Insurance. The Borrower will maintain or cause to be maintained with responsible insurance companies insurance with respect to the Purchased Vessel against such casualties, third-party liabilities and contingencies and in such amounts, in each case, as is customary for other businesses of similar size in the passenger cruise line industry (provided that in no event will the Borrower or any Subsidiary be required to obtain any business interruption, loss of hire or delay in delivery insurance) and will, upon request of the Facility Agent, furnish to the Facility Agent (with sufficient copies for distribution to each Lender) at reasonable intervals a certificate of a senior officer of the Borrower setting forth the nature and extent of all insurance maintained by the Borrower and certifying as to compliance with this Section.
SECTION 7.1.6. Books and Records. The Borrower will keep books and records that accurately reflect all of its business affairs and transactions and permit the Facility Agent and each Lender or any of their respective representatives, at reasonable times and intervals and upon reasonable prior notice, to visit each of its offices, to discuss its financial matters with its officers and to examine any of its books or other corporate records.
SECTION 7.1.7. BpiFAE Insurance Policy/French Authority Requirements. The Borrower shall, on the reasonable request of the ECA Agent or the Facility Agent, provide such other information as required under the BpiFAE Insurance Policy and/or the Interest Stabilisation Agreement as necessary to enable the ECA Agent or the Facility Agent to obtain the full support of the relevant French Authority pursuant to the BpiFAE Insurance Policy and/or the Interest Stabilisation Agreement (as the case may be). The Borrower must pay to the ECA Agent or the Facility Agent the amount of all reasonable costs and expenses reasonably incurred by the ECA Agent or the Facility Agent in connection with complying with a request by any French Authority for any additional information necessary or desirable in connection with the BpiFAE Insurance Policy or the Interest
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Stabilisation Agreement (as the case may be); provided that the Borrower is consulted before the ECA Agent or Natixis incurs any such cost or expense.
SECTION 7.1.8. Further Assurances in respect of the Framework. The Borrower will from time to time throughout the Financial Covenant Waiver Period, and at the request of the Facility Agent, promptly enter into good faith negotiations in respect of (a) amending this Agreement to remove the carve-out of Section 7.2.4 set out in Section 9.1.4 and/or (b) amending the financial covenants set forth in this Agreement, resetting the testing of such financial covenants and/or supplementing those financial covenants with additional financial covenants. A failure to reach an agreement under this paragraph following such good faith negotiations shall not constitute an Event of Default or a Prepayment Event.
SECTION 7.1.9. Equal Treatment with Pari Passu Creditors. The Borrower undertakes with the Facility Agent that it shall ensure (and shall procure that each other Group Member shall ensure) that the Lenders are treated equally in all respects with all other Pari Passu Creditors, and accordingly:
a)    the Borrower shall, to the extent not already entered into as at the Third Supplement Effective Date, enter into similar covenant amendment and replacement and mandatory prepayment arrangements to those contemplated by the Third Novation Agreement Supplement in respect of each ECA Financing (and for this purpose excluding any ECA Financings where the lenders under that ECA Financing do not provide their consent to such arrangements in circumstances where the arrangements contemplated in respect of that ECA Financing are on substantially the same basis as set out in this Agreement (as amended by the Third Novation Agreement Supplement) but including any financing which will, upon novation of the relevant facility agreement to the Borrower, become an ECA Financing) as soon as reasonably practicable after the Third Supplement Effective Date (with such amendments being on terms which shall not prejudice the rights of BpiFAE under this Agreement);
b)    the Borrower shall promptly upon written request, supply the Facility Agent and the ECA Agent with information (in a form and substance satisfactory to the Facility Agent and ECA Agent) regarding the status of the amendments to be entered into in accordance with paragraph (a) above;
c)    to enable the Borrower to comply with the requirements under paragraph (d) below, prior to any Group Member entering into any Restricted Credit Enhancement with a Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.9(a)(ii)), the Borrower shall promptly notify the Facility Agent (and such notification shall include details of the new Lien or Group Member Guarantee and shall otherwise be in form and substance reasonably satisfactory to the Facility Agent); and
d)    at the same time as any relevant Restricted Credit Enhancement is provided to the relevant Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.9(a)(ii)), the Borrower, any relevant Group Member and the Lenders shall enter into such documentation as may be necessary in the reasonable opinion of the Facility Agent to ensure that the Lenders benefit from that Restricted Credit Enhancement on the same terms as the relevant Pari Passu
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Creditor(s) and, where that Restricted Credit Enhancement is a Lien or a Group Member Guarantee, to share in that Lien or Group Member Guarantee on a pari passu basis (and the Lenders agree to enter into such intercreditor documentation to reflect such pari passu ranking (in a form and substance satisfactory to the Lenders (acting reasonably)) as may be required in connection with such arrangements).
SECTION 7.1.10. Performance of shipbuilding contract obligations. During the Financial Covenant Waiver Period, the Borrower shall (and shall procure that each of its Subsidiaries shall) comply with its contractual commitments under and in respect of (i) each shipbuilding contract in existence as at the Third Supplement Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into with the Builder and (ii) any option agreements or similar binding contractual commitments (whether in respect of a firm order of a vessel or otherwise) in existence at the Third Supplement Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into by the Borrower (or any of its Subsidiaries) and the Builder in connection with the potential entry into of a shipbuilding contract at a future point in time (it being agreed that such obligation shall not require the Borrower or the relevant Subsidiary (as applicable) to exercise any option or other contractual right thereunder), save that this Section 7.1.10 shall be subject to any amendment to any such shipbuilding contract, option agreement, contract or other related document if such amendment has, in consultation with the ECA Agent (acting on the instructions of BpiFAE), been agreed between the Borrower or, as the case may be, relevant Subsidiary and the Builder.
SECTION 7.2. Negative Covenants. The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date until all Commitments have terminated and all Obligations have been paid and performed in full, the Borrower will perform the obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will not, and will not permit any of its Subsidiaries to, engage in any principal business activity other than those engaged in by the Borrower and its Subsidiaries on the date hereof and other business activities reasonably related, ancillary or complimentary thereto or that are reasonable extensions thereof.
SECTION 7.2.2. Indebtedness. Until the occurrence of the Guarantee Release Date (whereupon Section 7.2.2 of Exhibit N shall apply in accordance with Section 7.3), the Borrower will not permit any of the Existing Principal Subsidiaries to create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, other than, without duplication, the following:
a)    Indebtedness secured by Liens of the type described in Section 7.2.3;
b)    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower;

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c)    Indebtedness incurred to finance, refinance or refund the cost (including the cost of construction) of assets acquired after the Effective Date;
d)    Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted to be secured under Section 7.2.3(b), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
e)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; and
f)    Indebtedness of Silversea Cruise Holding Ltd. and its Subsidiaries (“Silversea”) identified in Section 1 of Exhibit F hereto.
SECTION 7.2.3. Liens. Until the occurrence of the Guarantee Release Date (whereupon Section 7.2.2 of Exhibit N shall apply in accordance with Section 7.3) the Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired, except:
a)    Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Borrower after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Vessel, owns a Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
b)    in addition to other Liens permitted under this Section 7.2.3, Liens securing Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted under Section 7.2.2(d), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10% of the total assets of the Borrower and its Subsidiaries (the “Lien Basket Amount”) taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; provided, however that, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody’s and S&P, the Lien Basket Amount shall be the greater of (x) 5.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter and (y) $735,000,000;
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c)    Liens on assets acquired after the Effective Date by the Borrower or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Borrower or any of its Subsidiaries in anticipation thereof;
d)    Liens on any asset of any corporation that becomes a Subsidiary of the Borrower (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Borrower is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation becomes a Subsidiary of the Borrower and were not created by the Borrower or any of its Subsidiaries in anticipation thereof;
e)    Liens securing Government-related Obligations;
f)    Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;
g)    Liens of carriers, warehousemen, mechanics, material-men and landlords incurred in the ordinary course of business for sums not overdue by more than 60 days or being diligently contested in good faith by appropriate proceedings;
h)    Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
i)    Liens for current crew’s wages and salvage;
j)    Liens arising by operation of law as the result of the furnishing of necessaries for any Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings;
k)    Liens on Vessels that:
(i)    secure obligations covered (or reasonably expected to be covered) by insurance;
(ii)    were incurred in the course of or incidental to trading such Vessel in connection with repairs or other work to such Vessel; or
(iii)    were incurred in connection with work to such Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;
provided that, in each case described in this clause (k), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;
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l)    normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers’ liens, rights of set-off or similar rights in favor of banks or other depository institutions;
m)    Liens in respect of rights of set-off, recoupment and holdback in favor of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business;
n)    Liens on cash or Cash Equivalents or marketable securities securing obligations in respect of Hedging Instruments not incurred for speculative purposes or securing letters of credit that support such obligations;
o)    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
p)    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
q)    licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
r)    Liens on any property of Silversea identified in Section 2 of Exhibit F hereto,
provided, however that from the Third Supplement Effective Date until the Guarantee Release Date, no Group Member shall be entitled to grant any Lien of the type referred to in paragraphs (a) to (d) above over any ECA Financed Vessel.
SECTION 7.2.4. Financial Condition. The Borrower will not permit:
a)    Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1.
b)    Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter.
In addition, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody’s and S&P, the Borrower will not permit Stockholders’ Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single accounting period, but in any event excluding any Fiscal Quarters for which the Borrower and its Subsidiaries have a consolidated net loss).
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SECTION 7.2.4(A). Most favored lender with respect to Financial Covenants. During the Financial Covenant Waiver Period, if any Group Member agrees, in respect of any of its Indebtedness for borrowed money, to any new, modified or substitute financial covenants of the type, or similar to, the financial covenants set out in Section 7.2.4 above then (i) the Borrower shall notify the Facility Agent in writing within 5 Business Days of such new, modified or substitute financial covenants being agreed with the relevant creditor(s) and (ii) if required by the Lenders, the Borrower and the Lenders shall, as soon as practicable thereafter, enter into an amendment to this Agreement to incorporate the new, modified or substitute financial covenants.
SECTION 7.2.4(B). Notification of change to financial covenants.    (i)     If at any time during the Financial Covenant Waiver Period, other than as notified in writing by the Borrower to the Facility Agent prior to the date of the Third Novation Agreement Supplement, the last day of a financial covenant waiver period under any of the agreements in respect of any of the Borrower’s other Indebtedness shall be amended such that it falls prior to September 30, 2022, the Borrower shall notify the Facility Agent and that revised date, save as provided below, shall be the last date of the Financial Covenant Waiver Period for the purposes of this Agreement.
(ii)    If, other than as notified in writing by the Borrower to the Facility Agent prior to the date of the Third Novation Agreement Supplement, following receipt of the notice referred to in sub-paragraph (i) above, the relevant date referred to above is then extended, the Borrower shall be entitled to notify the Facility Agent of the same and, upon receipt of that notice, such revised date or, if earlier, September 30, 2022, shall then become the final date of the Financial Covenant Waiver Period for the purposes of this Agreement.
SECTION 7.2.4(C). Minimum liquidity. The Borrower will not allow the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP to be less than the Adjustable Amount as of (i) the last day of any calendar month from the Third Supplement Effective Date until the Covenant Modification Date, or (ii) if the Borrower is not in compliance with the requirements of this Section 7.2.4(C) as of the last day of any calendar month during the Financial Covenant Waiver Period (or, if earlier, prior to the Covenant Modification Date), the date the certificate required by Section 7.1.1(k) with respect to such month is delivered to the Facility Agent (it being understood that the Borrower shall not be required to comply with this Section 7.2.4(C) at any time on or after the Covenant Modification Date).

SECTION 7.2.5. Additional Undertakings.
From the effectiveness of the Second Novation Agreement Supplement, and notwithstanding anything to the contrary set out in this Agreement or any other Loan Document:
a)    First Priority Guarantee Matters. Until the occurrence of a First Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the First Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
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(ii)    the First Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(iii)    the First Priority Guarantor will not incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with any Other Guarantees;
(iv)    neither Celebrity Cruises Holdings Inc. nor Celebrity Cruises Inc will incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with the Secured Note Indebtedness or any Permitted Refinancing thereof; and
(v)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any First Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any First Priority Assets, other than
(A)    to any other entity that is a First Priority Guarantor;
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of First Priority Assets made after the effectiveness of the Second Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(1)    $250,000,000 plus
(2)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) First Priority Assets or other assets owned by another First Priority Guarantor immediately prior to acquisition) acquired by any First Priority Guarantor after the effectiveness of the Second Novation Agreement Supplement; or
(C)    if the net proceeds therefrom are applied in accordance with Section 4.09(b)(i) or 4.09(b)(iii) of the Secured Note Indenture, to the extent applicable at such time; provided, however, that if, within 450 days of such Disposition, any net proceeds of such Disposition have not been utilized in accordance with such provisions and
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are retained by the Borrower or any Subsidiary after such application (such retained net proceeds, “Excess Proceeds”), then:
(1)    if not already held by a First Priority Guarantor, such Excess Proceeds shall be promptly transferred to a First Priority Guarantor to be (x) retained in an account and on the balance sheet of that First Priority Guarantor and (y) used solely (i) for capital expenditures for the benefit of the remaining First Priority Assets or for the purposes of any asset purchase by that First Priority Guarantor or (ii) to make an offer to each ECA Guarantor in accordance with the following sub-clause (2); or
(2)    where the Borrower has elected to utilize the Excess Proceeds in the manner referred to in (ii) above, the Borrower shall make a written offer contemporaneously to each ECA Guarantor to apply such Excess Proceeds as a pro rata prepayment of the Loan and the Indebtedness under each other ECA Financing that is pari passu in right of payment to the Obligations. If any ECA Guarantor provides written notice to the Borrower within 90 days of such offer accepting such offer, the Borrower shall prepay the relevant Indebtedness notified to it within 10 Business Days (or such longer period as may be agreed with the lenders under each relevant ECA Financing being prepaid) of the date of receipt of such notice. If any ECA Guarantor fails to accept such offer within the said 90 days referred to above, then the pro rata portion of such Excess Proceeds that would have been applied to prepay the ECA Financings with respect to such ECA Guarantor if such offer was accepted shall be retained and applied in accordance with the foregoing sub-clause (1)(i).
b)    Second Priority Guarantee Matters. Until the occurrence of a Second Priority Release Event:
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(i)    the Borrower will not, and will not permit any of its Subsidiaries to, form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Second Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    no Second Priority Guarantor will form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any Second Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Second Priority Assets, other than:
(A)    to any other entity that is a Second Priority Guarantor; or
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Second Priority Assets made after the effectiveness of the Second Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A)) is less than the sum of:
(1)    $250,000,000 plus
(2)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Second Priority Assets or other assets owned by another Second Priority Guarantor immediately prior to acquisition) acquired by any Second Priority Guarantor after the effectiveness of the Second Novation Agreement Supplement.
c)    Third Priority Guarantee Matters. Until the occurrence of a Third Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the Third Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the Third Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the
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Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any Third Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Third Priority Assets, other than:
(A)    to any other entity that is a Third Priority Guarantor;
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Third Priority Assets made after the effectiveness of the Second Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(1)    $250,000,000 plus
(2)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Third Priority Assets or other assets owned by another Third Priority Guarantor immediately prior to acquisition) acquired by any Third Priority Guarantor after the effectiveness of the Second Novation Agreement Supplement; or
(C)    if the net proceeds therefrom are applied in accordance with those provisions of the Unsecured Note Indenture and/or the definitive documentation governing the DDTL Indebtedness to the extent applicable at the time which allow the Borrower to make an offer to prepay and/or repay the debt evidenced by the Unsecured Note Indenture and/or DDTL Indebtedness, as applicable; provided that, if any such net proceeds are retained by the Borrower or any Subsidiary after such application, the Borrower shall promptly repay or redeem all or any portion of any Indebtedness that is pari passu or senior in right of payment to the Obligations and for which a Third Priority Guarantor is a guarantor, in each case, subject to the terms of the documentation governing such Indebtedness (including the DDTL Indebtedness, the
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Unsecured Note Indebtedness, any Bank Indebtedness, any Credit Card Obligations, the Loan and any other Indebtedness under an ECA Financing); provided, further, that any repayment of Indebtedness under any revolving credit agreement pursuant to this paragraph shall be accompanied by a corresponding permanent reduction in the related revolving credit commitments.
d)    New Guarantor Matters. In the event the Borrower or any of its Subsidiaries acquires an ECA Financed Vessel:
(i)    the Borrower will cause the applicable New Guarantor to provide:
(A)    on or before the later of (1) 15 Business Days of the purchase of the relevant ECA Financed Vessel and (2) the Effective Time, (A) an Additional Guarantee, together with each equivalent Other Guarantee required to be provided under the terms of the other ECA Financings (as amended from time to time) and (B) all documents and information required by the Lenders in order to satisfy any applicable “know your customer” checks and any other reasonable condition precedent requirements of the Lenders (excluding, for the avoidance of doubt, legal opinions); provided that, in each case, if such New Guarantor is party to a Senior Guarantee at such time, the Facility Agent shall have contemporaneously entered into a New Guarantor Subordination Agreement; and
(ii)    until the occurrence of a Second Priority Release Event and a Third Priority Release Event:
(A)    the Borrower will not permit the applicable New Guarantor to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness) other than the applicable Additional Guarantee, any Other Guarantee and any Senior Guarantee;
(B)    the Borrower will not permit the Principal Subsidiary that acquires the relevant ECA Financed Vessel to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness);
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(C)    notwithstanding any other provision of this Agreement, the Borrower will not, and shall procure that no other Subsidiary shall Dispose (whether to a Group Member or otherwise) of the relevant ECA Financed Vessel (or any equity interests in a Subsidiary that owns, directly or indirectly, such ECA Financed Vessel); provided that (1) such ECA Financed Vessel may be exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries and (2) the Borrower or such Subsidiary may charter out such ECA Financed Vessel (x) to entities other than the Borrower and the Borrower’s wholly owned Subsidiaries and (y) on a time charter with a stated duration not in excess of one year; and
(D)    notwithstanding the provisions of Sections 7.2.2 and 7.2.3, the Borrower will not, and will not permit any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon the relevant ECA Financed Vessel, other than Liens permitted under Section 7.2.3 that do not secure Indebtedness for borrowed money.
e)    Further Assurances. At the Borrower’s reasonable request, the Facility Agent shall execute (i) any Additional Subordination Agreement or any Subordination Agreement, in substantially the form attached hereto as Exhibit J or Exhibit K with such changes, or otherwise in form and substance, reasonably satisfactory to the Facility Agent (acting upon the instructions of the Required Lenders and BpiFAE), to ensure the required priority of the Second Priority Guarantee and the Third Priority Guarantee and (ii) any New Guarantor Subordination Agreement contemporaneously with the execution of any Senior Guarantee by a New Guarantor if such New Guarantor is party to an Additional Guarantee at such time.
f)    Amount of Indebtedness. The Borrower shall ensure that:
(i)    the maximum aggregate principal amount of Bank Indebtedness (or any Permitted Refinancing thereof) guaranteed by the Second Priority Guarantors shall not exceed, in the aggregate, $5,300,000,000 (or its equivalent in any other currency) until the occurrence of a First Priority Release Event, a Second Priority Release Event, and a Third Priority Release Event;
(ii)    the maximum aggregate principal amount of Unsecured Note Indebtedness and DDTL Indebtedness (or any Permitted Refinancing of either of them), in each case, guaranteed by the Third Priority Guarantor shall not exceed, in the aggregate, $1,700,000,000 (or its equivalent in any other currency) until the occurrence of a Third Priority Release Event;
(iii)    until the occurrence of a Second Priority Release Event, none of the Second Priority Guarantors will grant any guarantee that is pari passu
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with or senior to its obligations under the Second Priority Guarantee, except in connection with (A) any Bank Indebtedness or any Permitted Refinancing thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that currently provided by that Second Priority Guarantor in connection with the relevant Indebtedness; and
(iv)    until the occurrence of a Third Priority Release Event, the Third Priority Guarantor will not grant any guarantee that is pari passu with or senior to its obligations under the Third Priority Guarantee, except in connection with (A) any Bank Indebtedness, Unsecured Note Indebtedness, DDTL Indebtedness or any Permitted Refinancing of any thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that currently provided by the Third Priority Guarantor in connection with the relevant Indebtedness.
g)    Release of Guarantees. The Borrower agrees to give the Facility Agent written notice of the occurrence of any First Priority Release Event, Second Priority Release Event or Third Priority Release Event. The Facility Agent agrees, subject to the proviso (2) below, that:
(i)    the First Priority Guarantee shall be automatically released upon the occurrence of a First Priority Release Event;
(ii)    the Second Priority Guarantee shall be automatically released upon the occurrence of a Second Priority Release Event;
(iii)    the Third Priority Guarantee shall be automatically released upon the occurrence of a Third Priority Release Event; and
(iv)    each Additional Guarantee shall be automatically released upon the occurrence of both a Second Priority Release Event and a Third Priority Release Event,
provided (1) in each case, and subject to proviso (2) below, that upon the Borrower’s request, the Facility Agent shall promptly confirm in writing the release of the applicable Guarantee following the occurrence of the relevant release event and (2) where the Borrower is of the opinion that it would, if the Guarantee Release Date was to occur, be in breach of the provisions of Section 7.2.2 as set out in Exhibit N (and which would otherwise come into effect on that Guarantee Release Date) on the Guarantee Release Date, the Borrower shall be entitled, by serving written notice on the Facility Agent, to request that the Guarantee Release Date be postponed until such time as the Borrower is satisfied that it will be able to comply with the provisions of the said Section 7.2.2. Where the Borrower issues a notice pursuant to this proviso (2) it agrees that it shall use all reasonable endeavors and take all appropriate action as may be practicable at such time to enable it to comply with the said Section 7.2.2 as soon as practicable following the date that the Guarantee Release Date would have occurred but for this proviso (2) so that the Guarantee Release Date can then occur and, as soon as it is satisfied that it will be able to comply with the said Section 7.2.2 it will promptly serve a further written notice on the  Facility Agent. Upon receipt of this further notice, the provisions of this paragraph (g) shall once again apply and
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the Facility Agent shall then take the action required of it to enable the Guarantee Release Date to occur.
SECTION 7.2.6. Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation, except:
a)    any such Subsidiary may (i) liquidate or dissolve voluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 7.2.7; and
b)    so long as no Event of Default has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i)    after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii)    in the case of a merger involving the Borrower where the Borrower is not the surviving corporation, (and without prejudice to the provisions of Sections 3.2b) and c) and 9.1.10, which shall not restrict the proposed merger but which can still apply to the extent that the proposed merger would give rise to any of the events or circumstances contemplated by such Sections):
(A)    the surviving corporation shall have assumed in writing, delivered to the Facility Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents; and
(B)    the surviving corporation shall, promptly upon the request of the Facility Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Facility Agent or any Lender in order for the Facility Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations.
SECTION 7.2.7. Asset Dispositions, etc. Subject to Section 7.2.5, the Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or substantially all of the assets of (a) the Borrower or (b) the Subsidiaries of the Borrower, taken as a whole, except sales of assets between or among the Borrower and Subsidiaries of the Borrower.
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SECTION 7.2.8. Borrower’s Procurement Undertaking. Where any of the covenants set out in this Agreement require performance by any Subsidiary of the Borrower, the Borrower shall procure the performance of that obligation by such Subsidiary.
SECTION 7.2.9. Framework Lien and Guarantee Restriction. From the Third Supplement Effective Date until the Guarantee Release Date, and without prejudice to Section 7.2.3, the Borrower shall not (and shall procure that each other Group Member shall not, save in respect of a Restricted Credit Enhancement of the type referred to in Section 7.1.9(d) (and in respect of which the Lenders therefore receive the benefit)):
a)    grant any Restricted Credit Enhancement in respect of any Indebtedness for borrowed money, provided that:
(i)    subject to the limitations set out in paragraph (b) below, this paragraph (a) shall not prohibit any Group Member from providing any Lien or Group Member Guarantee in connection with Indebtedness incurred after the Third Supplement Effective Date (provided that such Lien and/or Group Member Guarantee is issued at the same time, and in connection with, the initial incurrence of that Indebtedness (and is therefore not by way of additional credit support));
(ii)    in connection with a Permitted Refinancing of any Indebtedness, the relevant Group Member shall be entitled to provide the creditors under that Permitted Refinancing with Liens and/or Group Member Guarantees (as applicable) which:
(A)    in the case where the existing Indebtedness being refinanced was previously supported by Liens, the Liens and/or the Group Member Guarantees securing or supporting the Permitted Refinancing (as applicable) are over some or all of the same assets and
(1)    with respect to any Liens, are with the same or lower priority as the Liens in respect of such assets that secured the Indebtedness being refinanced; and    
(2)    with respect to any Group Member Guarantees, are Group Member Guarantees provided by a Group Member that owns (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that were previously secured pursuant to the Liens referred to in the first sentence of this paragraph (A); and
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(B)    in the case where the existing Indebtedness being refinanced was previously supported by any Group Member Guarantee, the Group Member Guarantee(s) supporting such Permitted Refinancing are:
(1)    guarantees of obligations in an amount no greater than the guarantees granted in connection with the original Indebtedness being refinanced;
(2)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing is the same entity providing the Group Member Guarantees that are being replaced, provided by entities owning (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that it owned when the previous Group Member Guarantee was provided;
(3)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing differs from the entity providing the Group Member Guarantees being replaced, provided by entities that directly or indirectly own Vessels with an aggregate book value no greater than the Vessels that were owned (directly or indirectly) by the previous provider of the relevant Group Member Guarantee(s) that supported the existing Indebtedness; and
(4)    the same or lower priority as the original Group Member Guarantee(s) and are issued by either the same entities or from shareholders of those entities,
provided that this paragraph (a) shall not prohibit any Group Member from providing or maintaining any Lien in accordance with the provisions of Section 7.2.3(d) through to (q) inclusive, provided, however, that the proviso at the end of Section 7.2.3(d) shall apply with respect to Liens granted pursuant to that provision; and
b)    incur any new Indebtedness (including Indebtedness of the type referred to in paragraph (a)(i) above but excluding any Permitted Refinancing Indebtedness in connection with paragraph (a)(ii) above) which is secured by a Lien or is supported by a Group Member Guarantee and which, when taken with all other Indebtedness incurred by the Group since the Third Supplement Effective Date and which is also
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secured by a Lien or supported by a Group Member Guarantee, is greater than $1,300,000,000 (but deducting from this amount for this purpose, (i) the amount of any additional Indebtedness incurred by the Borrower in connection with the drawing of the DDTL Indebtedness (whether pursuant to the accordion option or otherwise) or (ii) any Indebtedness borrowed in lieu of the drawing of the DDTL Indebtedness in the foregoing clause) or its equivalent in any other currency, and provided that no Group Member shall, as contemplated by the proviso to Section 7.2.3, from the Third Supplement Effective Date until the Guarantee Release Date (whereupon the relevant provisions of Exhibit N shall apply) be permitted to grant any Lien over an ECA Financed Vessel as security for any Indebtedness permitted to be incurred under this Agreement after the Third Supplement Effective Date.
SECTION 7.3. Covenant Replacement. With effect on and from the Guarantee Release Date, it is agreed that Sections 7.2.2 and 7.2.3 shall be deleted in their entirety and replaced with the covenants and other provisions set out in Exhibit N, which shall become part of this Agreement and effective and binding on all Parties.
SECTION 7.4. Lender incorporated in the Federal Republic of Germany. The representations and warranties and covenants given in Sections 6.16 and 7.1.3(f) respectively shall only be given, and be applicable to, a Lender incorporated in the Federal Republic of Germany insofar as the giving of and compliance with such representations and warranties do not result in a violation of or conflict with section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section 4 paragraph 1 a no.3 foreign trade law (AWG) (Außenwirtschaftsgesetz)), any provision of Council Regulation (EC) 2271/1996 or any similar applicable anti-boycott law or regulation.
ARTICLE VIII

EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or occurrences described in this Section 8.1 shall constitute an “Event of Default”.
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default in the payment when due of any amount payable by it under the Loan Documents in the manner required under the Loan Documents unless such failure is solely as a result of either (a) an administrative or technical error or (b) a Disruption Event , and, in either case, payment is made within 3 Business Days of its due date.
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) or under any other Loan Document is or shall be incorrect in any material respect when made.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. The Borrower shall default in the due performance and observance of
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any other agreement contained herein (including, from the Guarantee Release Date, Exhibit N) or in any other Loan Document (other than the covenants set forth in Section 7.1.1(i), Section 7.1.1(l), Section 7.1.1(m), Section 7.1.1(n), Section 7.1.1(o), Section 7.1.4(e), Section 7.1.8, Section 7.1.10 and Section 7.2.4 (but excluding Sections 7.2.4(A) and 7.2.4(B) (which shall be regulated in accordance with Section 9.1.11(d)) and also excluding Section 7.2.4(C), a breach of which shall, subject to the cure periods set out in this Section 8.1.3, result in an Event of Default) and the obligations referred to in Section 8.1.1) and such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower is actively seeking to remedy the same during such period, such default shall continue unremedied for at least 35 days after such notice to the Borrower).
SECTION 8.1.4. Default on Other Indebtedness. (a) The Borrower or any of its Principal Subsidiaries shall fail to pay any Indebtedness that is outstanding in a principal amount of at least $100,000,000 (or the equivalent in other currencies) in the aggregate (but excluding Indebtedness hereunder or with respect to Hedging Instruments) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (b) the occurrence under any Hedging Instrument of an Early Termination Date (as defined in such Hedging Instrument) resulting from (A) any event of default under such Hedging Instrument as to which the Borrower is the Defaulting Party (as defined in such Hedging Instrument) or (B) any Termination Event (as so defined) as to which the Borrower is an Affected Party (as so defined) and, in either event, the termination value with respect to any such Hedging Instrument owed by the Borrower as a result thereof is greater than $100,000,000 and the Borrower fails to pay such termination value when due after applicable grace periods; or (c) any other event shall occur or condition shall exist under any agreement or instrument evidencing, securing or relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to cause or permit the holder or holders of such Indebtedness to cause such Indebtedness to become due and payable prior to its scheduled maturity; or (d) any such Indebtedness shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption or by voluntary agreement), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness is required to be made, in each case prior to the scheduled maturity thereof (other than as a result of any sale or other disposition of any property or assets under the terms of such Indebtedness); provided that any required prepayment or right to require prepayment triggered by terms that are certified by the Borrower to be unique to, but customary in, ship financings shall not constitute an Event of Default under this Section 8.1.4 so long as any required prepayment is made when due. For purposes of determining Indebtedness for any Hedging Instrument, the principal amount of the obligations under any such instrument at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or any Principal
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Subsidiary would be required to pay if such instrument were terminated at such time.
SECTION 8.1.5. Bankruptcy, Insolvency, etc. The Borrower, any of the Material Guarantors or any of the Principal Subsidiaries (or any of its other Subsidiaries to the extent that the relevant event described below would have a Material Adverse Effect) shall:
a)    generally fail to pay, or admit in writing its inability to pay, its debts as they become due;
b)    apply for, consent to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or other custodian for it or any of its property, or make a general assignment for the benefit of creditors;
c)    in the absence of such application, consent or acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or other custodian for it or for a substantial part of its property, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 60 days, provided that in the case of such an event in respect of the Borrower or any Material Guarantor, such Person hereby expressly authorizes the Facility Agent and each Lender to appear in any court conducting any relevant proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents;
d)    permit or suffer to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of the Borrower, any Material Guarantor or any of such Subsidiaries, and, if any such case or proceeding is not commenced by the Borrower, such Material Guarantor or such Subsidiary, such case or proceeding shall be consented to or acquiesced in by the Borrower, such Material Guarantor or such Subsidiary or shall result in the entry of an order for relief or shall remain for 60 days undismissed, provided that the Borrower and each Material Guarantor hereby expressly authorizes the Facility Agent and each Lender to appear in any court conducting any such case or proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents; or
e)    take any corporate action authorizing, or in furtherance of, any of the foregoing.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in clauses (b) through (d) of Section 8.1.5 shall occur with respect to any Group Member, the Commitments (if not theretofore terminated) shall automatically terminate and the outstanding principal amount of the Loan and all other Obligations shall automatically be and become immediately due and payable, without notice or demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default (other than any Event of Default described in clauses (b) through (d) of Section 8.1.5 with respect to a Group Member) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Facility Agent, upon the direction of the Required Lenders (after consultation with BpiFAE who
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shall have the right to instruct the Lenders to waive such Event of Default), shall by notice to the Borrower declare all of the outstanding principal amount of the Loan and other Obligations to be due and payable and/or the Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of the Loan and other Obligations shall be and become immediately due and payable, without further notice, demand or presentment, and/or, as the case may be, the Commitments shall terminate.
ARTICLE IX

PREPAYMENT EVENTS
SECTION 9.1. Listing of Prepayment Events. Each of the following events or occurrences described in this Section 9.1 shall constitute a “Prepayment Event”.
SECTION 9.1.1. Change of Control. There occurs any Change of Control.
SECTION 9.1.2. Unenforceability. Any Loan Document shall cease to be the legally valid, binding and enforceable obligation of the Borrower or, to the extent applicable, any Material Guarantor (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 B-1 or in any opinion delivered to the Facility Agent after the Signing Date in connection with this Agreement or (ii) that a court of competent jurisdiction has determined are not material) and such event shall continue unremedied for 15 days after notice thereof has been given to the Borrower by the Facility Agent.
SECTION 9.1.3. Approvals. Any material license, consent, authorization, registration or approval at any time necessary to enable the Borrower, any Material Guarantor or any Principal Subsidiary to conduct its business shall be revoked, withdrawn or otherwise cease to be in full force and effect, unless the same would not have a Material Adverse Effect.
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations. The Borrower shall default in the due performance and observance of any of the covenants set forth in Sections 4.12, Section 7.1.1(m), Section 7.1.4(e) or 7.2.4 (but excluding Section 7.2.4(C)) and, in the case of Sections 7.1.1(m) and 7.1.4(e), such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower is actively seeking to remedy the same during such period, such default shall continue unremedied for at least 35 days after such notice to the Borrower), provided that any such default in respect of Section 7.2.4 (but again excluding Section 7.2.4(C)), that occurs during the Financial Covenant Waiver Period (but without prejudice to the rights of the Lenders in respect of any further breach that may occur following the expiry of the Financial Covenant Waiver Period) shall not (as long as no Event of Default under Section 8.1.5 has occurred and is continuing,
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or no Prepayment Event under Section 9.1.11 or 9.1.12 has occurred, in each case during the Financial Covenant Waiver Period) constitute a Prepayment Event.
SECTION 9.1.5. Judgments. Any judgment or order for the payment of money in excess of $100,000,000 shall be rendered against the Borrower or any of the Principal Subsidiaries by a court of competent jurisdiction and the Borrower or such Principal Subsidiary shall have failed to satisfy such judgment and either:
a)    enforcement proceedings in respect of any material assets of the Borrower or such Principal Subsidiary shall have been commenced by any creditor upon such judgment or order and shall not have been stayed or enjoined within five (5) Business Days after the commencement of such enforcement proceedings; or
b)    there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
SECTION 9.1.6. Condemnation, etc.. The Purchased Vessel shall be condemned or otherwise taken under color of law or requisitioned and the same shall continue unremedied for at least 20 days, unless such condemnation or other taking would not have a Material Adverse Effect.
SECTION 9.1.7. Arrest. The Purchased Vessel shall be arrested and the same shall continue unremedied for at least 20 days, unless such arrest would not have a Material Adverse Effect.
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel. The Purchased Vessel is sold to a company which is not the Borrower or any other Subsidiary of the Borrower (other than for the purpose of a lease back to the Borrower or any other Subsidiary of the Borrower).
SECTION 9.1.9. BpiFAE Insurance Policy. The BpiFAE Insurance Policy is cancelled for any reason or ceases to be in full force and effect.
SECTION 9.1.10. Illegality. No later than the close of business on the last day of the Option Period related to the giving of any Illegality Notice by an affected Lender pursuant to Section 3.2(b), either: (x) the Borrower has not elected to take an action specified in clause (1) or (2) of Section 3.2(c) or (y) if any such election shall have been made, the Borrower has failed to take the action required in respect of such election. In such circumstances the Facility Agent (at the direction of the affected Lender) shall by notice to the Borrower require the Borrower to prepay in full all principal and interest and all other Obligations owing to such Lender either (i) forthwith or, as the case may be, (ii) on a future specified date not being earlier than the latest date permitted by the relevant law.
SECTION 9.1.11. Framework Prohibited Events
a)    The Borrower declares, pays or makes or agrees to pay or make, directly or indirectly, any Restricted Payment, except for (i) dividends or other distributions with respect to its Equity Interests payable solely in additional shares of its Equity
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Interests or options to purchase Equity Interests, (ii) Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans (including with respect to performance shares issued in the ordinary course of business) for present or former officers, directors, consultants or employees of the Borrower in the ordinary course of business consistent with past practice and (iii) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exercisable for Equity Interests of the Borrower;
b)    a Group Member makes any payment of any kind under any shareholder loan;
c)    a Group Member sells, transfers, leases or otherwise disposes of any its assets, whether by one or a series of related transactions and that disposal or action was not conducted on arms' length terms between a willing seller and a willing buyer and for fair market value;
d)    any Group Member breaches any of the requirements of Section 7.1.1(i), Section 7.1.1(l), Section 7.1.1(n), Section 7.1.1(o), Section 7.1.8, Section 7.1.10, Section 7.2.4(A) or Section 7.2.4(B);
e)    a Group Member completes a Debt Incurrence;
f)    a Group Member enters into a Restricted Loan Arrangement; and/or
g)    a Group Member makes a Restricted Voluntary Prepayment and the Facility Agent (acting upon the instructions of BpiFAE) notifies the Borrower that BpiFAE has confirmed that the Financial Covenant Waiver Period shall come to an end.
SECTION 9.1.12. Breach of Principles and Framework.
The Borrower shall default in the due performance and observance of the Principles and/or the Framework (it being agreed that if there is inconsistency between the terms of the Principles and the Framework, the Framework shall prevail) and, if capable of remedy, such default shall continue unremedied for a period of ten (10) days after notice thereof shall have been given to the Borrower by the Facility Agent, provided that, if the default does not otherwise constitute a Default or a Prepayment Event under another section of this Agreement as amended to date, the Borrower, the Facility Agent, the ECA Agent and BpiFAE shall negotiate a resolution in good faith for a maximum period of fifteen (15) days after notice thereof shall have been given to the Borrower by the Facility Agent.
SECTION 9.2. Mandatory Prepayment. If any Prepayment Event (other than a Prepayment Event under Section 9.1.10) shall occur and be continuing, the Facility Agent, upon the direction of the Required Lenders, shall by notice to the Borrower require the Borrower to prepay in full on the date of such notice all principal of and interest on the Loan and all other Obligations (and, in such event, the Borrower agrees to so pay the full unpaid amount of the Loan and all accrued and unpaid interest thereon and all other Obligations), provided that in the case of a Prepayment Event arising under Sections 9.1.11 or 9.1.12, such Prepayment Event shall not give rise to an entitlement on the part of the Lenders to terminate the Commitments or, where the Loan has been advanced, to require that the Loan is prepaid but
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instead, where a notice is given by the Facility Agent pursuant to this Section 9.2 following the occurrence of a Prepayment Event under either Section 9.1.11 or 9.1.12, the waiver of Section 7.2.4 contained in Section 9.1.4 shall immediately cease such that any breach of Section 7.2.4 in existence as at the date of the notice from the Facility Agent referred to in the first sentence of this Section 9.2 or any breach occurring at any time after such notice shall constitute a Prepayment Event with all attendant consequences.
SECTION 9.3. Mitigation. If the ECA Agent, the Facility Agent or any of the Lenders become aware that an event or circumstance has arisen which will cause the BpiFAE Insurance Policy to be cancelled for any reason or no longer remain in full force and effect they shall notify the Borrower and the Lenders, the Borrower, the ECA Agent and the Facility Agent shall negotiate in good faith for a period of up to 30 days or, if less, the date by which the BpiFAE Insurance Policy shall be terminated or cease to be in full force and effect to determine whether the facility can be restructured and/or the Loan refinanced in a manner acceptable to each of the Lenders in their absolute discretion. The Lenders will use reasonable efforts to involve BpiFAE in such negotiations.
ARTICLE X

THE FACILITY AGENT AND THE ECA AGENT
SECTION 10.1. Actions. Each Lender hereby appoints Citibank Europe plc, UK Branch, as Facility Agent and HSBC Continental Europe as ECA Agent, as its agent under and for purposes of this Agreement and each other Loan Document (for purposes of this Article X, the Facility Agent and the ECA Agent are referred to collectively as the “Agents”). Each Lender authorizes the Agents to act on behalf of such Lender under this Agreement and each other Loan Document and, in the absence of other written instructions from the Required Lenders received from time to time by the Agents (with respect to which each Agent agrees that it will comply, except as otherwise provided in this Section 10.1 or as otherwise advised by counsel or as otherwise instructed by any French Authority, it being understood and agreed that any instructions provided by a French Authority shall prevail), to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Agents by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto. Neither Agent shall be obliged to act on the instructions of any Lender or the Required Lenders if to do so would, in the opinion of such Agent, be contrary to any provision of this Agreement or any other Loan Document or the BpiFAE Insurance Policy or to any law or the conflicting instructions of any French Authority, or would expose such Agent to any actual or potential liability to any third party. As between the Lenders and the Agents, it is acknowledged that each Agent’s duties under this Agreement and the other Loan Documents are solely mechanical and administrative in nature.
SECTION 10.2. Indemnity. Each Lender hereby indemnifies (which indemnity shall survive any termination of this Agreement) each Agent, pro rata according to such Lender’s Percentage, from and against any and all
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claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel) that be incurred by or asserted or awarded against, such Agent in any way relating to or arising out of this Agreement and any other Loan Document or any action taken or omitted by such Agent under this Agreement or any other Loan Document; provided that no Lender shall be liable for the payment of any portion of such claims, damages, losses, liabilities and expenses which have resulted from such Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that such Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any such indemnified costs, this Section applies whether any such investigation, litigation or proceeding is brought by any Agent, any Lender or a third party. Neither Agent shall be required to take any action hereunder or under any other Loan Document, or to prosecute or defend any suit in respect of this Agreement or any other Loan Document, unless it is expressly required to do so under this Agreement or is indemnified hereunder to its satisfaction. If any indemnity in favor of an Agent shall be or become, in such Agent’s determination, inadequate, such Agent may call for additional indemnification from the Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given.
SECTION 10.3. Funding Reliance, etc.
a)    Each Lender shall notify the Facility Agent by 4:00 p.m., London time, one day prior to the advance of the Loan if it is not able to fund the following day. Unless the Facility Agent shall have been notified by telephone, confirmed in writing, by any Lender by 4:00 p.m., London time, on the day prior to the advance of the Loan that such Lender will not make available the amount which would constitute its Percentage of the Loan on the date specified therefor, the Facility Agent may assume that such Lender has made such amount available to the Facility Agent and, in reliance upon such assumption, may, but shall not be obliged to, make available to the Borrower a corresponding amount (and for this purpose having regard to the provisions of paragraph (b) below). If and to the extent that such Lender shall not have made such amount available to the Facility Agent, such Lender and the Borrower severally agree to repay the Facility Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date the Facility Agent made such amount available to the Borrower to the date such amount is repaid to the Facility Agent, at the interest rate applicable at the time to the Loan without premium or penalty.
b)    
(i)     Where a sum is to be paid to an Agent under the Finance Documents for another party to this Agreement, that Agent is not obliged to pay that sum to that other party (or to enter into or perform any related
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exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum
(ii)    Unless paragraph (iii) below applies, if an Agent or its Affiliate or representative on its behalf or at its direction in performing the role of Agent (that Agent and its applicable Affiliate or representative being an “Agent Entity”) pays an amount to another party to this Agreement (unless sub-paragraph (iii) below applies) or, at the direction of such party, that party’s Affiliate, related fund or representative (such other party and its applicable Affiliate, related fund or representative being an “Other Party Entity”) and it proves to be the case (and for this purpose a statement of the relevant Agent given in good faith shall be prima facie evidence of this) that (A) neither that Agent nor the applicable Agent Entity actually received that amount or (B) such amount was otherwise paid in error (whether such error was known or ought to have been known to such other party or applicable Other Party Entity), then the party to whom that amount (or the proceeds of any related exchange contract) was paid (or on whose direction its applicable Other Party Entity was paid) by the applicable Agent Entity shall hold such amount on trust or, to the extent not possible as a matter of law, for the account (or will procure that its applicable Other Party Entity holds on trust or for the account) of the Agent Entity and on demand (or will procure that its applicable Other Party Entity shall on demand) refund the same to the Agent Entity together with interest on that amount from the date of payment to the date of receipt by the Agent Entity, calculated by the Agent to reflect its cost of funds.
(iii)    If an Agent, upon the Borrower’s written request, is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then, if and to the extent that such Agent does so but it proves to be the case (and for this purpose a statement of the relevant Agent given in good faith shall be prima facie evidence of this) that it does not then receive funds from a Lender (such Lender being a “Defaulting Lender”) in respect of such sum which it paid to the Borrower (or as it may direct) then: (A) the Agent shall notify (and the Lenders expressly acknowledge that the Agent shall be entitled to so notify) the Borrower of the identity of the Defaulting Lender; (B) without prejudice to any rights of the Borrower against the Defaulting Lender under this Agreement (including, without limitation, in relation to any amounts required to be paid by the Borrower under sub-paragraph (C) below) the Borrower shall (or shall procure that its applicable Other Party Entity to whom such amount was paid shall) hold such amount on trust or, to the extent not possible as a matter of law, for the account, of the relevant Agent and on demand refund it to that Agent; and (C) the Defaulting Lender by whom those funds should have been made available or, if that Defaulting Lender fails to do so (and having regard to paragraph (iv) below), the Borrower shall on demand pay to the relevant Agent the amount (as certified by that Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from the Defaulting Lender
(iv)    It is expressly acknowledged and agreed that, without prejudice to the requirement of the Borrower to make the payments referred to in paragraphs (ii) and (iii) above:
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(A) the Borrower shall not be obliged to pay interest for the account of the Defaulting Lender on the part of the Loan that was not made available by that Defaulting Lender but which was pre-funded by the relevant Agent pursuant to this Section 10.3(b); and
(B) the Defaulting Lender shall indemnify the Borrower for any costs, losses or liabilities incurred by the Borrower arising from the Defaulting Lender’s failure to make any payment under sub-Section (iii) above.
SECTION 10.4. Exculpation. Neither of the Agents nor any of their respective directors, officers, employees or agents shall be liable to any Lender for any action taken or omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for its own willful misconduct or gross negligence. Without limitation of the generality of the foregoing, each Agent (i) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it and in accordance with the advice of such counsel, accountants or experts, (ii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement, (iii) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of the Obligors or the existence at any time of any Default or Prepayment Event or to inspect the property (including the books and records) of the Obligors, (iv) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto, (v) shall incur no liability under or in respect of this Agreement by action upon any notice, consent, certificate or other instrument or writing (which may be by telecopier) believed by it to be genuine and signed or sent by the proper party or parties, and (vi) shall have no responsibility to the Borrower or any Lender on account of (A) the failure of a Lender or the Obligors to perform any of its obligations under this Agreement or any Loan Document; (B) the financial condition of the Obligors; (C) the completeness or accuracy of any statements, representations or warranties made in or pursuant to this Agreement or any Loan Document, or in or pursuant to any document delivered pursuant to or in connection with this Agreement or any Loan Document; or (D) the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of this Agreement or any Loan Document or of any document executed or delivered pursuant to or in connection with any Loan Document.
SECTION 10.5. Successor. The Facility Agent may resign as such at any time upon at least 30 days’ prior notice to the Borrower and all Lenders and shall resign where required to do in accordance with Section 4.14,
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provided that any such resignation shall not become effective until a successor Facility Agent has been appointed as provided in this Section 10.5 and such successor Facility Agent has accepted such appointment. If the Facility Agent at any time shall resign, the Required Lenders shall, subject to the immediately preceding proviso and subject to the consent of the Borrower (such consent not to be unreasonably withheld), appoint another Lender as a successor to the Facility Agent which shall thereupon become such Facility Agent’s successor hereunder (provided that the Required Lenders shall, subject to the consent of the Borrower unless an Event or Default or a Prepayment Event shall have occurred and be continuing (such consent not to be unreasonably withheld or delayed) offer to each of the other Lenders in turn, in the order of their respective Percentages of the Loan, the right to become successor Facility Agent). If no successor Facility Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the Facility Agent’s giving notice of resignation, then the Facility Agent may, on behalf of the Lenders, appoint a successor Facility Agent, which shall be one of the Lenders or a commercial banking institution having a combined capital and surplus of at least $1,000,000,000 (or the equivalent in other currencies), subject, in each case, to the consent of the Borrower (such consent not to be unreasonably withheld). Upon the acceptance of any appointment as Facility Agent hereunder by a successor Facility Agent, such successor Facility Agent shall be entitled to receive from the resigning Facility Agent such documents of transfer and assignment as such successor Facility Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the resigning Facility Agent, and the resigning Facility Agent shall be discharged from its duties and obligations under this Agreement. After any resigning Facility Agent’s resignation hereunder as the Facility Agent, the provisions of:
a)    this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Facility Agent under this Agreement; and
b)    Section 11.3 and Section 11.4 shall continue to inure to its benefit.
If a Lender acting as the Facility Agent assigns its Loan to one of its Affiliates, such Facility Agent may, subject to the consent of the Borrower (such consent not to be unreasonably withheld or delayed) assign its rights and obligations as Facility Agent to such Affiliate.
SECTION 10.6. Loans by the Facility Agent. The Facility Agent shall have the same rights and powers with respect to the Loan made by it or any of its Affiliates. The Facility Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Affiliate of the Borrower as if the Facility Agent were not the Facility Agent hereunder and without any duty to account therefor to the Lenders. The Facility Agent shall have no duty to disclose information obtained or received by it or any of its Affiliates relating to the Borrower or its Subsidiaries to the extent such information was obtained or received in any capacity other than as the Facility Agent.
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SECTION 10.7. Credit Decisions. Each Lender acknowledges that it has, independently of each Agent and each other Lender, and based on such Lender’s review of the financial information of the Obligors, this Agreement, the other Loan Documents (the terms and provisions of which being satisfactory to such Lender) and such other documents, information and investigations as such Lender has deemed appropriate, made its own credit decision to extend its Commitment. Each Lender also acknowledges that it will, independently of each Agent and each other Lender, and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under this Agreement or any other Loan Document.
SECTION 10.8. Copies, etc. Each Agent shall give prompt notice to each Lender of each notice or request required or permitted to be given to such Agent by the Borrower pursuant to the terms of this Agreement (unless concurrently delivered to the Lenders by the Borrower). Each Agent will distribute to each Lender each document or instrument received for its account and copies of all other communications received by such Agent from the Borrower for distribution to the Lenders by such Agent in accordance with the terms of this Agreement.
SECTION 10.9. The Agents’ Rights. Each Agent may (i) assume that all representations or warranties made or deemed repeated by the Obligors in or pursuant to this Agreement or any Loan Document are true and complete, unless, in its capacity as the Facility Agent, it has acquired actual knowledge to the contrary, (ii) assume that no Default has occurred unless, in its capacity as an Agent, it has acquired actual knowledge to the contrary, (iii) rely on any document or notice believed by it to be genuine, (iv) rely as to legal or other professional matters on opinions and statements of any legal or other professional advisers selected or approved by it, (v) rely as to any factual matters which might reasonably be expected to be within the knowledge of the Borrower on a certificate signed by or on behalf of the Borrower and (vi) refrain from exercising any right, power, discretion or remedy unless and until instructed to exercise that right, power, discretion or remedy and as to the manner of its exercise by the Lenders (or, where applicable, by the Required Lenders) and unless and until such Agent has received from the Lenders any payment which such Agent may require on account of, or any security which such Agent may require for, any costs, claims, expenses (including legal and other professional fees) and liabilities which it considers it may incur or sustain in complying with those instructions.
SECTION 10.10. The Facility Agent’s Duties. The Facility Agent shall (i) if requested in writing to do so by a Lender, make enquiry and advise the Lenders as to the performance or observance of any of the provisions of this Agreement or any Loan Document by the Borrower or as to the existence of an Event of Default and (ii) inform the Lenders promptly of any Event of Default of which the Facility Agent has actual knowledge.

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The Facility Agent shall not be deemed to have actual knowledge of the falsehood or incompleteness of any representation or warranty made or deemed repeated by the Obligors or actual knowledge of the occurrence of any Default unless a Lender or the Borrower shall have given written notice thereof to the Facility Agent in its capacity as the Facility Agent. Any information acquired by the Facility Agent other than specifically in its capacity as the Facility Agent shall not be deemed to be information acquired by the Facility Agent in its capacity as the Facility Agent.
The Facility Agent may, without any liability to account to the Lenders, generally engage in any kind of banking or trust business with the Borrower or with the Borrower’s Subsidiaries or associated companies or with a Lender as if it were not the Facility Agent.
SECTION 10.11. Employment of Agents. In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to this Agreement or the Loan Documents, each Agent shall be entitled to employ and pay agents to do anything which such Agent is empowered to do under or pursuant to this Agreement or the Loan Documents (including the receipt of money and documents and the payment of money); provided that, unless otherwise provided herein, including without limitation Section 11.3, the employment of such agents shall be for such Agent’s account, and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by such Agent in good faith to be competent to give such opinion, advice or information.
SECTION 10.12. Distribution of Payments. The Facility Agent shall pay promptly to the order of each Lender that Lender’s percentage share of every sum of money received by the Facility Agent pursuant to this Agreement or the Loan Documents (including, without limitation, any amounts payable pursuant to Section 4.4.1 but not including any amounts payable pursuant to the Fee Letter and any amounts which, by the terms of this Agreement or the Loan Documents, are paid to the Facility Agent for the account of the Facility Agent alone or specifically for the account of one or more Lenders) and until so paid such amount shall be held by the Facility Agent on trust absolutely for that Lender.
SECTION 10.13. Reimbursement. The Facility Agent shall have no liability to pay any sum to a Lender until it has itself received payment of that sum. If, however, the Facility Agent does pay any sum to a Lender on account of any amount prospectively due to that Lender pursuant to Section 10.12 before it has itself received payment of that amount, and the Facility Agent does not in fact receive payment within two (2) Business Days after the date on which that payment was required to be made by the terms of this Agreement or the Loan Documents, that Lender will, on demand by the Facility Agent, refund to the Facility Agent an amount equal to the amount received by it, together with an amount sufficient to reimburse the Facility Agent for any amount which the Facility Agent may certify that it has been required to pay by way of interest on money borrowed to fund the amount in question during the period beginning on the date on which that amount was required to be paid by the terms of this Agreement or the Loan Documents and ending on the date on which the Facility Agent receives reimbursement.
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SECTION 10.14. Instructions. Where an Agent is authorized or directed to act or refrain from acting in accordance with the instructions of the Lenders or of the Required Lenders each of the Lenders shall provide such Agent with instructions within three (3) Business Days of such Agent’s request (which request may be made orally or in writing). If a Lender does not provide such Agent with instructions within that period, that Lender shall be bound by the decision of such Agent. Nothing in this Section 10.14 shall limit the right of such Agent to take, or refrain from taking, any action without obtaining the instructions of the Lenders or the Required Lenders if such Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Lenders under or in connection with this Agreement or the Loan Documents. In that event, such Agent will notify the Lenders of the action taken by it as soon as reasonably practicable, and the Lenders agree to ratify any action taken by the Facility Agent pursuant to this Section 10.14.
SECTION 10.15. Payments. All amounts payable to a Lender under this Section 10 shall be paid to such account at such bank as that Lender may from time to time direct in writing to the Facility Agent.
SECTION 10.16. “Know your customer” Checks. Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in this Agreement or the Loan Documents.
SECTION 10.17. No Fiduciary Relationship. Except as provided in Section 10.12, no Agent shall have any fiduciary relationship with or be deemed to be a trustee of or for any other person and nothing contained in this Agreement or any Loan Document shall constitute a partnership between any two or more Lenders or between either Agent and any other person.
SECTION 10.18. Illegality. The Agent shall refrain from doing anything which it reasonably believes would be contrary to any law of any jurisdiction (including but not limited to England and Wales, the United States of America or any jurisdiction forming part of it) or any regulation or directive of any agency of such state or jurisdiction or which would or might render it liable to any person and may without liability do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
ARTICLE XI

MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrower and the Required Lenders; provided that no such amendment, modification or waiver which would:
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a)    contravene or be in breach of the terms of the BpiFAE Insurance Policy or the arrangements with Natixis DAI relating to the Fixed Rate (if the Fixed Rate applies) shall be effective unless consented to by, as applicable, BpiFAE and/or Natixis DAI;
b)    modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
c)    modify this Section 11.1 or change the definition of “Required Lenders” shall be made without the consent of each Lender;
d)    increase the Commitment of any Lender shall be made without the consent of such Lender;
e)    reduce any fees described in Article III payable to any Lender shall be made without the consent of such Lender;
f)    extend the Commitment Termination Date of any Lender shall be made without the consent of such Lender;
g)    extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on the Loan (or reduce the principal amount of or rate of interest on the Loan) owed to any Lender shall be made without the consent of such Lender; or
h)    affect adversely the interests, rights or obligations of the Facility Agent or the ECA Agent in its capacity as such shall be made without consent of the Facility Agent or the ECA Agent (respectively) .
No failure or delay on the part of the Facility Agent, the ECA Agent or any Lender in exercising any power or right under this Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by any the Facility Agent, the ECA Agent or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The Lenders hereby agree, at any time and from time to time that the Nordea Agreement or the Bank of Nova Scotia Agreement is amended or refinanced, to negotiate in good faith to amend this Agreement to conform any representations, warranties, covenants or events of default in this Agreement to the amendments made to any substantively comparable provisions in the Nordea Agreement or the Bank of Nova Scotia Agreement or any refinancing thereof.
Neither the Borrower’s rights nor its obligations under the Loan Documents shall be changed, directly or indirectly, as a result of any amendment, supplement, modification, variance or novation of the BpiFAE Insurance Policy, except any amendments, supplements, modifications, variances or novations, as the case may be, which occur (i) with the Borrower’s consent, (ii) at the Borrower’s request or (iii) in order to conform to amendments, supplements,
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modifications, variances or novations effected in respect of the Loan Documents in accordance with their terms.
SECTION 11.2. Notices.
a)    All notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing, by facsimile or by electronic mail and addressed, delivered or transmitted to such party at its address, facsimile number or electronic mail address set forth below its signature hereto or set forth in the Lender Assignment Agreement or at such other address, or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient.
b)    So long as Citibank Europe plc, UK Branch is the Facility Agent, the Borrower may provide to the Facility Agent all information, documents and other materials that it furnishes to the Facility Agent hereunder or any other Loan Document (and any guaranties, security agreements and other agreements relating thereto), including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing advance or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due hereunder or any other Loan Document prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of the Agreement and/or any advance or other extension of credit hereunder (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Facility Agent to such email address notified by the Facility Agent to the Borrower; provided that any Communication requested pursuant to Section 7.1.1(h) shall be in a format acceptable to the Borrower and the Facility Agent.
c)    The Borrower agrees that the Facility Agent may make such items included in the Communications as the Borrower may specifically agree available to the Lenders by posting such notices, at the option of the Borrower, on Debt Domain or any similar such platform (the “Platform”) acceptable to the Borrower. Although the primary web portal is secured with a dual firewall and a User ID/Password Authorization System and the Platform is secured through a single user per deal authorization method whereby each user may access the Platform only on a deal-by-deal basis, the Borrower acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Facility Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors
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or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Facility Agent or any of its Affiliates in connection with the Platform.
d)    The Facility Agent agrees that the receipt of Communications by the Facility Agent at its e-mail address set forth above shall constitute effective delivery of such Communications to the Facility Agent for purposes hereunder and any other Loan Document (and any guaranties, security agreements and other agreements relating thereto).
SECTION 11.3. Payment of Costs and Expenses. The Borrower agrees to pay on demand all reasonable expenses of the Facility Agent (including the reasonable fees and out-of-pocket expenses of counsel to the Facility Agent and of local counsel, if any, who may be retained by counsel to the Facility Agent) in connection with any amendments, waivers, consents, supplements or other modifications to, this Agreement or any other Loan Document as may from time to time hereafter be required, whether or not the transactions contemplated hereby are consummated, together with any documented costs and expenses incurred by the Facility Agent to the provider of the Platform (as defined in Section 11.2.c)) in connection with the operation and/or use of the Platform. The Borrower further agrees to pay, and to save the Facility Agent and the Lenders harmless from all liability for, any stamp, recording, documentary or other similar taxes arising from the execution, delivery or enforcement of this Agreement or the borrowing hereunder or any other Loan Documents. The Borrower also agrees to reimburse the Facility Agent and each Lender upon demand for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and legal expenses) incurred by the Facility Agent or such Lender in connection with (x) the negotiation of any restructuring or “work-out”, whether or not consummated, of any Obligations and (y) the enforcement of any Obligations.
SECTION 11.4. Indemnification. In consideration of the execution and delivery of this Agreement by each Lender and the extension of the Commitments, the Borrower hereby indemnifies and holds harmless the Facility Agent, the ECA Agent each Lender and each of their respective Affiliates and their respective officers, advisors, directors and employees (collectively, the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case arising out of or in connection with or by reason of this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby or any actual or proposed use of the proceeds of the Loans (collectively, the “Indemnified Liabilities”), except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of
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competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct or the material breach by such Indemnified Party of its obligations under this Agreement, any other Loan Document, the BpiFAE Insurance Policy or Interest Stabilisation Agreement and which breach is not attributable to the Borrower’s own breach of the terms of this Agreement or any other Loan Document or is a claim, damage, loss, liability or expense which would have been compensated under other provisions of the Loan Documents but for any exclusions applicable thereunder.
In the case of an investigation, litigation or other proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its directors, security holders or creditors, an Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto. Each Indemnified Party shall (a) furnish the Borrower with prompt notice of any action, suit or other claim covered by this Section 11.4, (b) not agree to any settlement or compromise of any such action, suit or claim without the Borrower’s prior consent, (c) 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) and (d) at the Borrower’s request, permit the Borrower to assume control of the defense of any such claim, other than regulatory, supervisory or similar investigations, provided that (i) the Borrower acknowledges in writing its obligations to indemnify the Indemnified Party in accordance with the terms herein in connection with such claims, (ii) the Borrower shall keep the Indemnified Party fully informed with respect to the conduct of the defense of such claim, (iii) the Borrower shall consult in good faith with the Indemnified Party (from time to time and before taking any material decision) about the conduct of the defense of such claim, (iv) the Borrower shall conduct the defense of such claim properly and diligently taking into account its own interests and those of the Indemnified Party, (v) the Borrower shall employ counsel reasonably acceptable to the Indemnified Party and at the Borrower’s expense, and (vi) the Borrower shall not enter into a settlement with respect to such claim unless either (A) such settlement involves only the payment of a monetary sum, does not include any performance by or an admission of liability or responsibility on the part of the Indemnified Party, and contains a provision unconditionally releasing the Indemnified Party and each other indemnified party from, and holding all such persons harmless, against, all liability in respect of claims by any releasing party or (B) the Indemnified Party provides written consent to such settlement (such consent not to be unreasonably withheld or delayed). Notwithstanding the Borrower’s election to assume the defense of such action, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such action and the Borrower shall bear the fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Borrower to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Borrower and the Indemnified Party and the Indemnified Party shall have concluded that there may be legal defenses available to it which are different from or additional to those available to the Borrower and determined that it is necessary to employ separate counsel in order to pursue such defenses (in which case the Borrower shall not have the right to assume the defense of such action on the Indemnified Party’s behalf), (iii) the Borrower shall not have employed counsel reasonably acceptable to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action, or (iv) the Borrower authorizes the Indemnified Party to
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employ separate counsel at the Borrower’s expense. The Borrower acknowledges that none of the Indemnified Parties shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Borrower or any of its security holders or creditors for or in connection with the transactions contemplated hereby, except to the extent such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct. In no event, however, shall any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings). If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
SECTION 11.5. Survival. The obligations of the Borrower under Sections 4.3, 4.4, 4.5, 4.6, 4.7, 11.3 and 11.4 and the obligations of the Lenders under Section 10.1, shall in each case survive any termination of this Agreement and the payment in full of all Obligations. The representations and warranties made by the Borrower in this Agreement and in each other Loan Document shall survive the execution and delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or such Loan Document or affecting the validity or enforceability of such provision in any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and of each other Loan Document are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or such other Loan Document or any provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. This Agreement, as a novated and amended Agreement, shall become effective upon the occurrence of the Novation Effective Time under, and as defined in, the Novation Agreement.
SECTION 11.9. Third Party Rights. Notwithstanding the provisions of the Contracts (Rights of Third Parties) Act 1999, no term of this Agreement is enforceable by a person who is not a party to it with the exception of BpiFAE and Natixis.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided that:
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a)    except to the extent permitted under Section 7.2.6, the Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of the Facility Agent, each Lender and BpiFAE; and
b)    the rights of sale, assignment and transfer of the Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan. Each Lender may assign its Percentage or portion of the Loan to one or more other Persons (a “New Lender”), or sell participations in its Percentage or portion of the Loan to one or more other Persons; provided that, in the case of assignments where the Fixed Rate applies, such New Lender (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, and subject as provided in Section 11.11.1(iv)) enters into an Interest Stabilisation Agreement.
SECTION 11.11.1. Assignments
(i) Any Lender with the prior written consents of the Borrower and the Facility Agent (which consents shall not be unreasonably delayed or withheld and which consent, in the case of the Borrower, shall be deemed to have been given in the absence of a written notice delivered by the Borrower to the Facility Agent, on or before the fifth Business Day after receipt by the Borrower of such Lender’s request for consent, stating, in reasonable detail, the reasons why the Borrower proposes to withhold such consent) may at any time (and from time to time) assign or transfer to one or more commercial banks or other financial institutions all or any fraction of such Lender’s portion of the Loan.
(ii) Any Lender, with notice to the Borrower and the Facility Agent, and, notwithstanding the foregoing clause (i), without the consent of the Borrower, or the Facility Agent may assign or transfer (A) to any of its Affiliates, (B) to SFIL or (C) following the occurrence and during the continuance of an Event of Default under Sections 8.1.1, 8.1.4(a) or 8.1.5, to any other Person, in each case, all or any fraction of such Lender’s portion of the Loan.
(iii) Any Lender may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign or charge all or any fraction of its portion of the Loan to any federal reserve or central bank as collateral security in connection with the extension of credit or support by such federal reserve or central bank to such Lender.
(iv) SFIL may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign, charge or otherwise grant security over all or any fraction of its portion of the Loan and of its rights as Lender to CAFFIL as collateral security in connection with the extension of credit or support by CAFFIL to SFIL in respect of this Agreement and the BpiFAE Enhanced Guarantee, provided that at the time of the assignment, charge or grant of security CAFFIL is an Affiliate of SFIL and that such assignment, charge or other security is on terms that (i) CAFFIL shall not have any rights to assign, charge or grant any security over such rights to any other person (other than to BpiFAE pursuant to and in accordance with the BpiFAE Enhanced Guarantee) without the prior written consent of the Borrower, (ii) CAFFIL shall only be entitled to enforce its rights under such assignment, charge or other security without the prior written consent of the Borrower if at that
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time it remains an Affiliate of SFIL, (iii) prior to any enforcement such assignment, charge or other security, the Borrower and the Facility Agent shall continue to deal solely and directly with SFIL in connection with its rights and obligations as Lender under this Agreement and other Loan Documents (subject to any payment instructions given by SFIL), (iv) for the avoidance of doubt, the Borrower’s rights and obligations under this Agreement shall not be increased or affected (including, without limitation, the right to pay Fixed Rate under Section 3.3.1) as a result of such assignment, charge or security or any enforcement thereof, (v) the Borrower shall not be liable to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay to SFIL had no such assignment, charge or other security been granted and (vi) without prejudice to SFIL’s obligations under that Section, CAFFIL shall be bound by the confidentiality provisions set forth in Section 11.15. in relation to any information to which it applies to the same extent as required of the Lenders. For the avoidance of doubt: (A) if CAFFIL becomes a Lender under this Agreement in respect of any portion of the Loan following enforcement of any assignment, charge or other security granted to it by SFIL pursuant to this Section 11.11.1(iv), it shall have the same rights to assign or transfer all or any fraction of such portion of the Loan on and subject to the same terms and conditions as are set forth in this Agreement for assignments and transfers by other Lenders and (B) CAFFIL may not enforce its rights under any such assignment, charge or other security by assigning or transferring all or any fraction of SFIL’s portion of the Loan or any of its rights or obligations under this Agreement or other Loan Documents except pursuant to an assignment or transfer to a commercial bank or other financial institution on and subject to the same terms and conditions as are set forth in this Agreement for assignments and transfers by Lenders.
(v) No Lender may (notwithstanding the foregoing clauses) assign or transfer any of its rights under this Agreement unless it has given prior written notification of the transfer to BpiFAE and (if the Loan is accruing interest at the Fixed Rate) Natixis DAI and has obtained a prior written consent from BpiFAE and Natixis DAI and any Assignee Lender (other than BpiFAE and CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1(iv)) is, if the Fixed Rate applies, eligible to benefit from the Fixed Rate stabilisation. Any assignment or transfer shall comply with the terms of the BpiFAE Insurance Policy.
(vi) Nothing in this Section 11.11.1 shall prejudice the right of the Lender to assign its rights under this Agreement to BpiFAE, if such assignment is required to be made by that Lender to BpiFAE in accordance with the BpiFAE Insurance Policy or the BpiFAE Enhanced Guarantee or, if the Lender is SFIL, to CAFFIL (but only if CAFFIL is, at that time, an Affiliate of SFIL) upon the enforcement of any security granted pursuant, and subject to the provisions of paragraph (iv) of Section 11.11.1, in connection with the BpiFAE Enhanced Guarantee.
Each Person described in the foregoing clauses as being the Person to whom such assignment or transfer is to be made, is hereinafter referred to as an “Assignee Lender”. Assignments in a minimum aggregate amount of $25,000,000 (or, if less, all of such Lender’s portion of the Loan and Commitment) (which assignment or transfer shall be of a constant, and not a varying, percentage of such Lender’s portion of the Loan) are permitted; provided that the Borrower and the Facility Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned or transferred to an Assignee Lender until:
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a)    written notice of such assignment or transfer, together with payment instructions, addresses and related information with respect to such Assignee Lender, shall have been given to the Borrower and the Facility Agent by such Lender and such Assignee Lender;
b)    such Assignee Lender shall have executed and delivered to the Borrower and the Facility Agent a Lender Assignment Agreement, accepted by the Facility Agent and any other agreements required by the Facility Agent or, if the Fixed Rate applies, Natixis in connection therewith; and
c)    the processing fees described below shall have been paid.
From and after the date that the Facility Agent accepts such Lender Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to have become a party hereto and to the extent that rights and obligations hereunder have been assigned or transferred to such Assignee Lender in connection with such Lender Assignment Agreement, shall have the rights and obligations of a Lender hereunder and under the other Loan Documents, and (y) the assignor Lender, to the extent that rights and obligations hereunder have been assigned or transferred by it, shall be released from its obligations hereunder and under the other Loan Documents, other than any obligations arising prior to the effective date of such assignment. Except to the extent resulting from a subsequent change in law, in no event shall the Borrower be required to pay to any Assignee Lender any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no such assignment been made. Such assignor Lender or such Assignee Lender must also pay a processing fee to the Facility Agent upon delivery of any Lender Assignment Agreement in the amount of $5,000 (and shall also reimburse the Facility Agent and Natixis for any reasonable out-of-pocket costs, including reasonable attorneys’ fees and expenses, incurred in connection with the assignment).
SECTION 11.11.2. Participations. Any Lender may at any time sell to one or more commercial banks or other financial institutions (each of such commercial banks and other financial institutions being herein called a “Participant”) participating interests in its Loan; provided that:
a)    no participation contemplated in this Section 11.11.2 shall relieve such Lender from its obligations hereunder;
b)    such Lender shall remain solely responsible for the performance of its obligations hereunder;
c)    the Borrower and the Facility Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and each of the other Loan Documents;
d)    no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant’s consent, take any actions of the type described in clauses (b) through (f) of Section 11.1;
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e)    the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no participating interest been sold; and
f)    each Lender that sells a participation under this Section 11.11.2 shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each of the Participant’s interest in that Lender’s portion of the Loan, Commitments or other interests hereunder (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender may treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes hereunder.
The Borrower acknowledges and agrees that each Participant, for purposes of Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and clause (e) of 7.1.1, shall be considered a Lender.
SECTION 11.11.3. Register. The Facility Agent shall maintain at its address referred to in Section 11.2 a copy of each Lender Assignment Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment(s) of, and principal amount of the Loan owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Facility Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
SECTION 11.11.4. Rights of BpiFAE to payments. The Borrower acknowledges that, immediately upon any payment by BpiFAE (i) of any amounts to a Lender under the BpiFAE Insurance Policy, BpiFAE will be automatically subrogated to the extent of such payment to the rights of that Lender under the Loan Documents or (ii) of any amount under the BpiFAE Enhanced Guarantee and the enforcement of any related security granted by SFIL to any of its Affiliates, which may benefit BpiFAE after payment by BpiFAE under the BpiFAE Enhanced Guarantee, BpiFAE will be automatically entitled to receive the payments normally due to SFIL under the Loan Documents( but, for the avoidance of doubt, such payments shall continue to be made by the Borrower to the Facility Agent in accordance with the provisions of Section 4.8 or any other relevant provisions of this Agreement, as applicable).
SECTION 11.12. Other Transactions. Nothing contained herein shall preclude the Facility Agent or any Lender from engaging in any transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or any of its Affiliates in which the Borrower or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13. BpiFAE Insurance Policy.
SECTION 11.13.1. Terms of BpiFAE Insurance Policy
a)    The BpiFAE Insurance Policy will cover 100% of the Loan.
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b)    The BpiFAE Premium will equal 3% of the aggregate principal amount of the Loan as at the Actual Delivery Date.
c)    If, after the Actual Delivery Date, the Borrower prepays all or part of the Loan in accordance with this Agreement, BpiFAE shall reimburse to the ECA Agent for the account of the Borrower an amount equal to 80% of all or a corresponding proportion of the unexpired portion of the BpiFAE Premium, having regard to the amount of the prepayment and the remaining term of the Loan, such amount to be calculated in accordance with the following formula:
R = P x (1 – (1 / (1+3%)) x (N / (12 * 365)) x 80%
where:
“R” means the amount of the refund;
“P” means the amount of the prepayment;
“N” means the number of days between the effective prepayment date and Final Maturity; and
P x (1 – (1 / (1+3%)) corresponds to the share of the financed BpiFAE Premium corresponding to P.
SECTION 11.13.2. Obligations of the Borrower. Provided that the BpiFAE Insurance Policy complies with Section 11.13.1 and remains in full force and effect, the Borrower shall pay the balance of the BpiFAE Premium calculated in accordance with Section 11.3.1(b) and still owing to BpiFAE on the Actual Delivery Date to BpiFAE on the Actual Delivery Date by directing the Agent in the Loan Request to pay the Additional Advance in respect of the BpiFAE Premium directly to BpiFAE.
SECTION 11.13.3. Obligations of the ECA Agent and the Lenders.
a)    Promptly upon receipt of the BpiFAE Insurance Policy from BpiFAE, the ECA Agent shall (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE Insurance Policy) send a copy thereof to the Borrower.
b)    The ECA Agent shall perform such acts or provide such information, which are, acting reasonably, within its power so to perform or so to provide, as required by BpiFAE under the BpiFAE Insurance Policy as necessary to ensure that the Lenders obtain the support of BpiFAE pursuant to the BpiFAE Insurance Policy.
c)    Each Lender will cooperate with the ECA Agent, the Facility Agent and each other Lender, and take such action and/or refrain from taking such action as may be reasonably necessary, to ensure that the BpiFAE Insurance Policy and each Interest Stabilisation Agreement continues in full force and effect and shall indemnify and hold harmless each other Lender in the event that the BpiFAE Insurance Policy or such Interest Stabilisation Agreement (as the case may be) does not continue in full force and effect due to its gross negligence or willful default or due to a voluntary
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change in status which results in it no longer being eligible for Fixed Rate interest stabilisation.
d)    The ECA Agent, in conjunction with the Facility Agent, shall:
(i)     make written requests to BpiFAE seeking a reimbursement of the BpiFAE Premium in the circumstances described in Section 11.13.1(c) promptly after the relevant cancellation or prepayment and (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE Insurance Policy) provide a copy of the request to the Borrower;
(ii)    use its reasonable endeavours to seek any reimbursement of the BpiFAE Premium to which the ECA Agent is entitled;
(iii)    pay to the Borrower (in the same currency as the refund received from BpiFAE) the full amount of any reimbursement of the BpiFAE Premium that the ECA Agent receives from BpiFAE within two (2) Business Days of receipt; and
(iv)    relay the good faith concerns of the Borrower to BpiFAE regarding the amount of any reimbursement to which the ECA Agent is entitled, it being agreed that the ECA Agent’s obligation shall be no greater than simply to pass on to BpiFAE the Borrower’s concerns.
SECTION 11.14. Law and Jurisdiction
SECTION 11.14.1. Governing Law. This Agreement and any non-contractual obligations arising out of or in respect of this Agreement shall in all respects be governed by and interpreted in accordance with English Law.
SECTION 11.14.2. Jurisdiction. For the exclusive benefit of the Facility Agent and the Lenders, the parties to this Agreement irrevocably agree that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and that any proceedings may be brought in those courts. The Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Section, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum.
SECTION 11.14.3. Alternative Jurisdiction. Nothing contained in this Section shall limit the right of the Facility Agent or the Lenders to commence any proceedings against the Borrower in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
SECTION 11.14.4. Service of Process. Without prejudice to the right of the Facility Agent or the Lenders to use any other method of service permitted by law, the Borrower irrevocably agrees that any writ, notice, judgment or other legal process shall be sufficiently served on it if addressed to it and left at or sent by post to RCL Cruises Ltd., presently at Building 3, The Heights – Brooklands, Weybridge, Surrey, KT13 ONY, Attention: General Counsel, and in
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that event shall be conclusively deemed to have been served at the time of leaving or, if posted, at 9:00 am on the third Business Day after posting by prepaid first class registered post.
SECTION 11.15. Confidentiality. Each of the Facility Agent and the Lenders agrees to maintain and to cause its Affiliates to maintain the confidentiality of all information provided to it by the Borrower or any Subsidiary of the Borrower, or by the Facility Agent on the Borrower’s or such Subsidiary’s behalf, under this Agreement, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement or in connection with other business now or hereafter existing or contemplated with the Borrower or any Subsidiary, except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by it or its Affiliates or their respective directors, officers, employees and agents, or (ii) was or becomes available on a non-confidential basis from a source other than the Borrower or any of its Subsidiaries so long as such source is not, to its knowledge, prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Borrower or any of its Affiliates; provided, however, that it may disclose such information (A) at the request or pursuant to any requirement of any self-regulatory body, governmental body, agency or official to which the Facility Agent, any Lender or any of their respective Affiliates is subject or in connection with an examination of the Facility Agent, such Lender or any of their respective Affiliates by any such authority or body, including without limitation the Republic of France and any French Authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable requirement of law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Facility Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder; (F) to the Facility Agent or such Lender’s independent auditors, counsel, and any other professional advisors of the Facility Agent or such Lender who are advised of the confidentiality of such information; (G) to any participant or assignee, provided that such Person agrees to keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (H) as to the Facility Agent, any Lender or their respective Affiliates, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Borrower or any Subsidiary is party with the Facility Agent, such Lender or such Affiliate; (I) to its Affiliates and its Affiliates’ directors, officers, employees, professional advisors and agents, provided that each such Affiliate, director, officer, employee, professional advisor or agent shall keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (J) to any other party to the Agreement and (K) to the French Authorities and any Person to whom information is required to be disclosed by the French Authorities. Each of the Facility Agent and the Lenders shall be responsible for any breach of this Section 11.15 by any of its Affiliates or any of its or its Affiliates’ directors, officers, employees, professional advisors and agents.
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SECTION 11.16. French Authority Requirements. The Borrower acknowledges that:
a)    the Republic of France and any French Authority or any authorised representatives specified by these bodies shall be authorised at any time to inspect and make or demand copies of the records, accounts, documents and other deeds of any or all of the Lenders relating to this Agreement;
b)    in the course of its activity as the Facility Agent, the Facility Agent may:
(i)    provide the Republic of France and any French Authority with information concerning the transactions to be handled by it under this Agreement; and
(ii)    disclose information concerning the subsidized transaction contemplated by this Agreement in the context of internationally agreed consultation/notification proceedings and statutory specifications, including information received from the Lenders relating to this Agreement.
SECTION 11.17. Waiver of immunity. To the extent that the Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its assets, the Borrower hereby irrevocably waives such immunity in respect of its obligations under this Agreement and the other Loan Documents.

SECTION 11.18. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of a Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
a)    the application of any Write-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
b)    the effects of any Bail-in Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any Resolution Authority.
104

IN WITNESS WHEREOF, the parties hereto have caused this Hull No. A35 Credit 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 _________________________
Name:
Title:
Address:     1050 Caribbean Way
        Miami, Florida 33132
Facsimile No.: (305) 539-0562
Email:        agibson@rccl.com
        bstein@rccl.com
Attention:     Vice President, Treasurer
With a copy to: General Counsel





CITIBANK EUROPE PLC as Lender
Commitment
15% of the Maximum Loan Amount By__________________________
Name:
Title:
1 North Wall Quay
Dublin 1
D01T8Y1
Ireland

Attention:    Wei-Fong Chan
        Kara Catt
        Romina Coates
        Antoine Paycha

Address: Citigroup Centre, 33 Canada Square, London E14 5LB United Kingdom

Fax No:    +44 20 7986 4881
Tel No:    +44 20 7986 3036 /
        +44 20 7508 0344 /
        +44 20 7986 4824 /
        +44 20 7500 0907

E-mail:
weifong.chan@citi.com
kara.catt@citi.com
romina.coates@citi.com
antoine.paycha@citi.com


106
HSBC CONTINENTAL EUROPE as Lender
Commitment
15% of the Maximum Loan Amount By__________________________
Name:
Title:
HSBC Continental Europe – Global Banking Agency Operations (GBAO) Transaction Manager Unit
103 avenue des Champs Elysées
75008 Paris
France

Attention:    
        Florencia Thomas
        Alexandra Penda

Fax No:    +33 1 40 70 28 80
Tel No:    +33 1 40 70 73 81 /
+33 1 41 02 67 50

Email:    florencia.thomas@hsbc.fr
alexandra.penda@hsbc.fr

Copy to:

HSBC Continental Europe
103 avenue des Champs Elysées
75008 Paris
France

Attention:     Julie Bellais
        Celine Karsenty

Fax No:     +33 1 40 70 78 93
Tel No:     +33 1 40 70 28 59 /
        + 33 1 40 70 22 97
 
Email:        julie.bellais@hsbc.fr     eline.karesenty@hsbc.fr

    107
BANCO SANTANDER S.A. as Lender
Commitment
13% of the Maximum Loan Amount By__________________________
Name:
Title:
Ciudad Grupo Santander.
Avda. Cantabria s/n 28660
Boadilla del Monte
SPAIN

For Operational / Servicing matters
Attention:    José Manuel Herrero
        Ana Sanz Gómez
        Carmen Molina Rodes
Tel No:    +91 2573221 /
        +91 2891790 /
        +91 1752530
Email:    
sindicadossan@gruposantander.com
josema.herrero@gruposantander.com
anasanz@gruposantander.com
cmolinar@gruposantander.com

For Credit matters
Attention:    Elise Regnault
Tel No:    +34 91 289 3722 /
        +34 615 90 2718
Email:    
elise.regnault@gruposantander.com

Attention:    Angela Rabanal
Tel No:    +1 212 297 2942
Email:    arabanal@santander.us

Attention:    Ecaterina Mucuta
Tel No:    +33 1 53 53 70 46 /
        +33 7 76 04 97 30
Email:
ecaterina.mucuta@gruposantander.com

    108
BANCO BILBAO VIZCAYA ARGENTARIA S.A., PARIS BRANCH as Lender
Commitment
13% of the Maximum Loan Amount By__________________________
Name:
Title:
29 avenue de l'Opéra
75001 Paris
France
 
Attention:     David Albagli
        Alessandro Aiello
        Laura Luca de Tena
                Natalia Herzner
                 Shirin Arabsolghar

Fax No:     +33 1 44 86 84 45
Tel No:     +39 02 76296 246 /
                    +33 1 44 86 83 21
                               
Email:        david.albagli@bbva.com
            laura.luca@bbva.com
                   alessandro.aiello@bbva.com
                   natalia.herzner@bbva.com
                   shirin.arabsolghar@bbva.com

    109
BNP PARIBAS SA as Lender
Commitment
13% of the Maximum Loan Amount By__________________________
Name:
Title:
16 Boulevard des Italiens
75009 Paris
France

For Operational / Servicing matters
Attention :    Thierry ANEZO

Tel No:    +33 1 43 16 81 57
Email:    
Thierry.anezo@bnpparibas.com

Attention :    Estelle FARNY
Tel No :    +33 1 40 14 59 84
Email :        Estelle.farny@bnpparibas.com

For Credit matters

Attention:    Mauricio GONZALEZ
Fax No :     +1 212 841 2421
Tel No :    +1 212 841 3888
Email :     mauricio.gonzalez@us.bnpparibas.com

Attention :    Alexandre DE VATHAIRE
Fax No:    +33 1 42 98 13 15
Tel No:    +33 1 42 98 00 29
Email :
alexandre.devathaire@bnpparibas.com


    110
SMBC BANK INTERNATIONAL PLC as Lender
Commitment
13% of the Maximum Loan Amount By__________________________
Name:
Title:
1/3/5 rue Paul Cézanne
75008 Paris
France

For Operational / Servicing matters
PRIMARY CONTACT
Attention:     European Loan Operations
Address:     Sumitomo Mitsui Banking         Corporation Europe Limited
    99 Queen Victoria Street
    London EC4V 4EH
    United Kingdom
Fax No:     +44 20 7786 1569
Tel No:    +44 20 7786 1789 / 1588
Email:     
GBLOOADLOANELO@gb.smbcgroup.com
Note: notices to be sent by Fax only

SECONDARY CONTACT
Attention:    Guillaume Branco / Helene Ly
Address:    Transportation Department -         Maritime
    1/3/5 rue Paul Cézanne
    75008 Paris
    France
Tel No:    +33 1 44 90 48 71 /
    +33 1 44 90 48 76
Email:    
guillaume_branco@fr.smbcgroup.com
helene_ly@fr.smbcgroup.com

For Credit matters
Attention:    Guillaume Branco
    Helene Ly
    Hervé Billi
    Claire Lucien
Fax No:    +33 1 44 90 48 01
Tel No:    +33 1 44 90 48 71 /
    111
    +33 1 44 90 48 76 /
    +33 1 44 90 48 48 /
    +33 1 44 90 48 49

Email:
guillaume_branco@fr.smbcgroup.com
helene_ly@fr.smbcgroup.com
FRPAGTFD@fr.smbcgroup.com


    112
SOCIÉTÉ GÉNÉRALE as Lender
Commitment
13% of the Maximum Loan Amount By__________________________
Name:
Title:
29 Boulevard Haussmann
75009 Paris
France

For Credit Matters

Attention:    Francois ROLLAND  
    Mohamed MEROUANE
Address:    Société Générale, 189,
    rue d’Aubervilliers, 75886
    PARIS CEDEX 18
    GBSU/FTB/SMO/EXT
Tel No:    +33 1 58 98 17 78 /
    +33 1 58 98 92 06
Email:    list.par-gbsu-ftb-smo-ext-aom         @sgcib.com

For Operational Matters
Attention:    Paul Rousseau
Address:    189, rue d’Aubervilliers
    75886 Paris
    CEDEX 18
    OPER/FIN/STR/DMT6
Tel No:    +33 1 58 98 50 93
Email:    par-oper-caf-dmt6@sgcib.com


    113
UNICREDIT BANK AG as Lender
Commitment
5% of the Maximum Loan Amount By__________________________
Name:
Title:
Arabellastrasse 12
81925 Munich
Germany

For Credit matters
Attention:    Michael Schwarz /
    Burcu Arslan
Tel No:    +49 89 378 20324 / 25207
Email:     michael.schwarz@unicredit.de    Burcu.arslan@unicredit.de

For Operational matters
Attention:    Agnieszka Karolina Starska /         Manuela Zuddas /
    Michele Angelo Pappalettera

Tel No:    +39 0288 629 985
Email:    
munich_buyerscredit.uc@unicredit.eu

    114
CITIBANK N.A., LONDON BRANCH as Global Coordinator
By__________________________
Name:
Title:
Citigroup Centre
Canada Square
London E14 5LB
United Kingdom
Attention:    Wei-Fong Chan    Kara Catt
    Romina Coates
    Antoine Paycha


Fax No:    +44 20 7986 4881
Tel No:    +44 20 7986 3036 /
    +44 20 7508 0344 /
    +44 20 7986 4824 /
    +44 20 7500 0907

E-mail:
weifong.chan@citi.com
kara.catt@citi.com
romina.coates@citi.com
antoine.paycha@citi.com


    115
HSBC CONTINENTAL EUROPE as ECA Agent
By__________________________
Name:
Title:
HSBC Continental Europe – Global Banking Agency Operations (GBAO) Transaction Manager Unit
103 avenue des Champs Elysées
75008 Paris
France

Attention:    Florencia Thomas
    Alexandra Penda

Fax No:    +33 1 40 70 28 80
Tel No:    +33 1 40 70 73 81 /
    +33 1 41 02 67 50

Email:        florencia.thomas@hsbc.fr
    alexandra.penda@hsbc.fr

Copy to:

HSBC Continental Europe
103 avenue des Champs Elysées
75008 Paris
France

Attention:     Julie Bellais
    Celine Karsenty

Fax No:     +33 1 40 70 78 93
Tel No:     +33 1 40 70 28 59 /
    + 33 1 40 70 22 97
 
Email:    julie.bellais@hsbc.fr         celine.karesenty@hsbc.fr
    116
CITIBANK EUROPE PLC, UK BRANCH as Facility Agent
By__________________________
Name:
Title:
5th Floor Citigroup Centre
Mail drop CGC2 05-65
25 Canada Square Canary Wharf
London E14 5LB
U.K.

Fax no.:    +44 20 7492 3980

Attention:    EMEA Loans Agency



    117
Annex A
Framework

    


"DEBT REFERRAL EXTENSION FRAMEWORK" FOR ECA BACKED EXPORT FINANCINGS


Please note that this is a non-binding document which remains subject to changes and additional
requests. Decisions will be taken on a case-by-case basis.



Preamble

The Corona-pandemic continues to heavily affect the global tourism industry, including all cruise ship operators (“Companies”, a cruise operator the “Company” - including, if any, the guarantor and/or the holding company and/or the group). Almost all cruise ship operations are still suspended with various “no-sail orders” still in place.

As the cruise ship operations are still largely suspended, several cruise ship operators are expected to require an extension of the existing debt deferral initiative. The European ECAs (“ECAs”) intend to provide a coordinated response to these requests on a pan-European basis.

This document sets out the key principles (the “Terms and Conditions”) of a framework for a debt deferral extension of principal repayments and testing of financial covenants (the “Debt Deferral Extension” or “DDFE”) for already executed ECAs covered loan agreements (“Loan Agreement”) in connection with the financing of cruise vessels.

The terms of the Debt Deferral Extension are preliminary and informative in nature and shall not be deemed to be binding nor shall they represent any commitment by the ECAs in respect thereof. All Companies that are not already in formal debt restructuring proceedings can apply for the Debt Deferral Extension. ECAs are available to evaluate granting of the Debt Deferral Extension on a case by case basis subject to specific terms and conditions to be agreed upon with any of the Companies and nonetheless subject to approval by the respective ECAs competent bodies.

The European ECAs jointly are providing unilateral support to the cruise industry, for the benefit of the yards and the supply chain associated, by providing an extension to the initial temporary relief already given to the Companies, by deferring principal payments falling due from 1st April 2021 to 31st March 2022.

Such support is based on the firm mutual understanding that the Companies, taking advantage of the Debt Deferral Extension, sha l use their best endeavours fulfilling their contractual obligations under their existing shipbuilding contracts with the yard, i.e. do not unreasonably, unduly, and without consultation delay instalments and scheduled vessel deliveries and work in good faith with the yards to resolve any crisis-related construction delays. In particular, the Companies should avoid to cancel existing orders, either already effective and to become effective in the future.

Furthermore, the ECAs believe this initiative to be an important step to safeguard and strengthen the financial position of the Companies. Such support may enable the Companies in dealing with other existing creditors or bondholders in order to receive similar relief. In addition, it is our firm expectation that the Companies engage intensively with their respective shareholders and potential new shareholders to provide all possible support. It is the ECAs understanding that all relevant and involved stakeholders contribute to the efforts of stabilising the liquidity situation of the Companies during the current difficult market conditions in order to avoid formal debt restructuring proceedings. Such shareholders’ and debtholders support will be a major element in the evaluation and decision-making process.

All Companies have implemented liquidity initiatives by raising substantial liquidity throughout the crisis to face the halt of their operations and they will continue to do so if so requested. The ECAs are providing their support on the assumption that the Companies are still in an overall sound financial position and their business model is still well founded, so that as soon as the current travel restrictions will be discharged, the Companies will be able to resume “business as usual” and meet their future financial obligations.








1
    

"DEBT REFERRAL EXTENSION FRAMEWORK" FOR ECA BACKED EXPORT FINANCINGS



1.    Generic Terms&Conditions of the Debt Deferral Extension
1.1    Deferred Payments on ECA-covered debt

1.1.1    Debt Deferral shall be extended to all principal payments under the original ECA loans and the Existing Deferral Tranche payable between 1st April 2021 and 31st March 2022 ("New Deferred Payments"). The New Deferred Payments shall be expected to be documented and administered as an additional Debt Deferral Tranche (“New Debt Deferral Tranche”).
1.1.2    The repayment schedules of the previously agreed deferred payments until 31.03.2021 (“Existing Deferral Tranche”) and the repayment schedule of the Original Loan will remain unchanged. The repayments under both repayment schedules which are due between 1st April 2021 and 31st March 2022 shall be covered by drawings under the New Debt Deferral Tranche.
1.1.3    The New Debt Deferral Tranche shall be repaid within 5 years starting from April 1st 2022, if commercially feasible on the same due dates as the originally scheduled payments, until 31.03.2027, irrespective of remaining tenor of each individual export financing and subject to 1.1.6 below.
1.1.4    Interest (floating or fixed; commitment fee on undisbursed amounts) and any scheduled ECA premium payments shall continue to be payable.
1.1.5    ECA cover remains effective and extended also on New Deferred Payments. ECAs coverage on any potential additional interest margin arising from the New Debt Deferral Tranche will be at discretion of each ECAs.
1.1.6    In the event that the payment of New Deferred Payments on the same due dates as the originally scheduled payments will result not feasible or advisable for the ECAs, repayment schedule of New Deferred Payments may be determined individually on the basis of a case-by- case examination by the ECA (for example the maturity date under the existing ECA financing (as amended by the Existing Debt Deferral) is less than the theoretical final maturity of the New Debt Deferral Tranche.

1.2    Suspension of Financial Covenant Testing

1.2.1    Testing of all agreed Financial Covenants (in disbursed and undisbursed facilities) shall continue to be suspended until 31.03.2022 ("Testing Suspension" with non-compliance does not trigger an Event of Default).
1.2.2    Over the next 18 months, the financing banks and ECAs shall have the right / option to trigger on their own discretion the negotiation to reset the individual financial covenants of a Company. The basic idea behind is that a corridor for the financial covenants shall be set for the coming years as soon the operational performance is in a ramp-up phase and the financial visibility does improve.
1.2.3    Although Testing Suspension remains in place, reasonable minimum liquidity requirement shall apply, if the Company has no liquidity covenant in place, minimum liquidity covenants for Debt Deferral Extension shall be introduced (however, aligned with any relevant liquidity covenants included in other financings)

1.3    ECA Premium, Interest and Fees:

1.3.1    Additional upfront/one-off ECA premium on New Debt Deferral Tranche Payments ("Additional ECA Premium") shall apply.
1.3.2    Additional ECA Premium shall be calculated by each ECAs based on its evaluation of the Debt









2
    

"DEBT REFERRAL EXTENSION FRAMEWORK" FOR ECA BACKED EXPORT FINANCINGS



Holiday request.
1.3.3    Additional ECA Premium shall be due and payable at signing of the Debt Deferral Extension. The Additional ECA Premium is not refundable.
1.3.4    The Company shall bear any incurred adjustment on funding cost (CIRR and/or bank funding) for New Debt Deferral Tranche (for New Deferred Payments).
1.3.5    The Company shall agree on reasonable upfront and coordination fees, due and payable at signing of Debt Deferral Extension. A fee of the same amount than the one payable to the lenders may also be payable to the ECA, if the ECA so requests.
1.3.6    The Company shall bear any incurred legal and administrative cost to implement New Deferred Payments including but not limited to CIRR agreements.
1.3.7    In case there are several financings supported by different ECAs, the Company shall apply for the Debt Deferral Extension to all the ECAs. However, if the consent of the ECA lenders for one or more of these ECA financings is not obtained (due to the refusal of the ECA lenders of said financing), that should not prevent the Debt Deferral Extension to be implemented for the other ECA financings

2.    Undertakings
2.1    All conditions and undertakings of the Existing Debt Deferral shall remain in place, especially:
(i)    dividend restriction,
(ii)    mandatory redemption events,
(iii)    information covenant and monitoring
(iv)    specific ECA’s requirements (including, but not limited to, environmental covenant).

2.2    In particular, additional covenants will be added in the Debt Deferral Extension including but not limited to:

(i)    Any dividend payment, any share buy-back program or any other distribution or payment to share capital or shareholders (including repayment of shareholder loans), and/or
(ii)    new financing granted by the Company [(including inter-company loans)], and/or
(iii)    any non-arm length disposal of asset and/or
(iv)    any additional security in favour of existing debts (unless the ECA lenders benefit from this new security on a pari passu basis), and/or
(v)    any new regular debt or equity issue (such as bond or new equity emission) or other form of indebtedness by the Company
(vi)    any debt deferral or covenant waivers of existing debts, or any new debt raising intended to reimburse existing debt that benefit from additional securities or more favourable terms on existing security packages (unless they are granted to ECA lender on a pari passu basis),

shall trigger mandatory prepayment, to be made through an hard prepayment in a lump sum of any outstanding amount under the New Debt Deferral Tranche and immediate cessation of Testing Suspension, in any case subject to the provisions below.

2.3    Utilisation of the New Tranche shall be subject to proof of evidence of sufficient crisis-related liquidity measures by the Company, including equity, which shall be documented in the application process based on the Information Package (see paragraph 3.4. below).

2.4    During and until the end of the New Debt Deferral Tranche, the mandatory prepayment provision and the cessation of the Testing Suspension will not apply in relation to:

(i)    debt issuances by the Company due to financing of any scheduled ship building contract instalments, including, but not limited to, final instalment at delivery;
(ii)    (i) crisis and recovery related debt provided either (a) on unsecured basis and in accordance within the limitation provided under the documentation or (b) on secured basis if so requested





3
    

"DEBT REFERRAL EXTENSION FRAMEWORK" FOR ECA BACKED EXPORT FINANCINGS



by a State supported arrangement and in any case within the limitation provided under the documentation or
(ii)    equity issuances by the Company
in both cases (i) and (ii) made until 31 December 2021;

(iii)    after 31 December 2021, crisis and recovery related debt or equity issuances by the Company made with the prior written consent of the ECA;
(iv)    extension (or renewal of) revolving credit facilities, with the prior consent of the ECA if any additional security shall be granted on this occasion.

2.5    Additional redemption mechanism

ECAs shall have the right to request mandatory redemption of Existing and New Deferred Payments if the Company wishes to redeem other commercial lenders and/or bondholders early (pari passu redemption). For the avoidance of doubt, the refinancing of debt or mandatory prepayments necessary to avoid an event of default ECAs will not request a pari passu redemption. Voluntary prepayment and/or cash sweep shall trigger a mandatory prepayment and drawstop of the Existing and New Debt Deferral Tranches, unless those are applied across the ECAS facilities under the New Debt Deferral Tranches.

2.6    Additional security

1.    The Company shall grant additional security or credit enhancements to ECA lenders (and consequently to the ECA) to be negotiated in good faith, if so requested by the ECAS. Without prejudice to paragraph 3.6(b) below with respect to new ECA financings, it is the ECAs firm understanding that additional securities will have to be provided on a pari passu basis to all the involved ECAs for any of the existing loan agreements.
2.    Additional Security may be requested by each and every ECA at their own sole discretion, in case such ECA is requested by the Company to support a new ECA financing in relation to any scheduled or new ship building contract, including the financing of new change orders and/or owner’s supplies.

2.7    Early Termination of New and Existing Debt Deferrals

If the Company and/or the obligors enters all-creditor and/or formal debt restructuring proceedings including but not limited to US Chapter 11 proceedings, all Deferred Payments of the Existing and the New Debt Deferral Tranche shall be void [or not effective] and the Company shall reimburse the ECAs financings according to original repayment schedule. For the avoidance of doubt, all sums deferred shall be immediately repaid and undrawn amounts under the Existing and New Debt Deferral Tranches shall be subject of a draw stop.


3.    Procedure for Debt Deferral Extension application

3.1    Each cruise operator ("Company" or the “Borrower” or the “Obligor”) may apply through its ECA- Agent bank, for the Debt Deferral Extension with each ECA for all its disbursed and undisbursed ECA-backed existing export financings. In one application, several financings can be bundled. Each Company shall apply Debt Deferral Extension also with CIRR Mandatory for all its disbursed ECA-backed CIRR export financings in an application via the respective CIRR-Agent bank.

3.2    The Facility Agent in coordination with ECA- and CIRR-Agent shall coordinate Lenders' consent immediately after Company launched application for Debt Deferral Extension. For the avoidance of doubt, ECA- and CIRR-approval shall be decided in a timely fashion based on prior ECA





4
    

"DEBT REFERRAL EXTENSION FRAMEWORK" FOR ECA BACKED EXPORT FINANCINGS



coordination.

3.3    Similar to Debt Deferral Application in Q2 2020 Company shall provide an updated information package as may be required by the relevant ECA based on its standardized template as described in the Annex.

3.4    The Borrower/Company/Obligor shall provide the following information:
(i)    Treatment of other (new) creditors during Debt Holiday 1.0
(ii)    Overview of already collected crisis liquidity
(iii)    Overview of already concluded and further planned equity measures

(iv)    Overview of any debt deferral already negotiated/agreed with other creditors as of the date of application for the Debt Deferral Extension and description of the steps which the Borrower/Company/Obligor intends to take in order to agree any additional debt deferral with other creditors, alongside the Debt Deferral Extension.
(v)    [Detailed information in relation to any security or additional security granted in favour of any class of creditors (lenders/financiers, bondholders or other relevant creditors) which has been created or agreed as of the date of application for the Debt Deferral Extension]
(vi)    [Exhaustive and detailed description of any financial covenant which has been included within the terms and conditions of any debt issuance carried out within [1 February 2020] and the date of application for the Debt Deferral Extension and/or included in financing agreement in place as of the same date]

(vii)    Detailed information of future repayment obligations over the repayment tenor of the Debt Deferral Extension.
(viii)    Presentation of previous and future measures to secure the situation of shipyards and their order books
(ix)    Status of the Application with other ECAs
(x)    Rough estimate of the Company’s economic contribution to the ECAs’ respective economic systems.
(xi)    Detailed cash flow projections (Management Base Case and Management Stress Case) to illustrate the positive impact of the Debt Deferral Extension (at least 5 years projection) plus additional stress case scenarios, if requested by the respective ECAs, including cases with no substantial and cash generating operations prior to 01.06.2021 and 01.10.2021. Projections shall demonstrate the ability of the Applicant to meet its payment obligations towards its creditors until the end of the New Debt Deferral Tranche repayment period.
(xii)    Agreed repayment schedule of New Debt Deferral Tranche for all affected financings.

3.5    The Company and any of the Insured Banks shall also provide information regarding their commercial exposure and the arrangements taken (or under negotiation) towards this Applicant’s commercial exposure.

3.6    The Application should also cover:
(a)    a declaration of the Company to use its best efforts to:
1.    enter into similar agreements or arrangements with other class of its creditors; and to
2.    finalize agreement which won’t put in jeopardy the ECAS position or the shipyard and
(b)    a confirmation that the application is sent to all the ECAs involved at once.





5
    

"DEBT REFERRAL EXTENSION FRAMEWORK" FOR ECA BACKED EXPORT FINANCINGS



Please refer to the Annex for the comprehensive list of information and monitoring process to be implemented.


















































6
    
Annex B
Debt Deferral Extension Regular Monitoring Requirements
Debt Deferral Extension - Regular Monitoring Requirements
Monitoring Period:
-    Starting point: approval
-    End: the expiry of the Financial Covenant Waiver Period, whereby the list of documents and frequency shall be reviewed and adjusted annually by the Facility Agent.
    
Rhythm
Description
1. monthly
Reporting of the:
1.    Total Free Liquidity Position – def.: free cash + free undrawn credit lines;
2.    Free Net Liquidity Position – Total Free Liquidity Position minus all planned debt repayments
(bank loan, commercial papers, bonds) which are due within the following 6 months.;
3.    In case the Free Net Liquidity Position does decease to 6x the average of the monthly operational cash burn rate the ECA can decide on its own discretion whether a shorter reporting rhythm shall be implemented (e.g. weekly).;
4.    Description of additional measures implemented to increase the liquidity position (debt, mezzanine and equity measures) / Whereby details of the respective terms and conditions shall be included (e.g. securities, ranking), for easy reference an ongoing list would be preferred with (a) measures taken, (b) additional measures finalized in the respective month and (c) additional measures planned.;
5.    Description of of additional cost cutting measures implemented to reduce the outflow of liquidity (OPEX, CAPEX, Debt Deferrals etc.);
6.    Repayment or refinancing of existing debt
 
2. monthly
Cash Flow Projection of the cruise line on a monthly basis
The Projection means cash flow statements in excel format, complete with formulas, shall cover the following period:
1.    Actual figures: The current financial year (whereby at least 1 quarter with actual historical figures have to be included);
2.    Projection: At least the following 24 months starting from the respective current month
(including shut down period and recovery phase)
Cash Flow Projection showing:
1.    operating cash flow including and separately listed Cruise-Revenues (including but not limited to occupancy rate, ticket prices, capacity of the overall fleet, capacity of fleet in operation), Cruise-OPEX, other COGS, net customer deposits collection (providing details of deposit refund separately), working capital and SG&A;
2.    cash flow from investing activities (separately: detailing capex in vessels, general capex and disposals / In addition for information purposes the newbuilding capex which will be paid out of equity.),
3.    cash flow from financing activities (detailing proceeds from equity, proceeds from debt separated by type of funding and ECA facilities, debt repayments separately), etc.
4.    Interest expenses
Such Cash Flow Projection shall be accompanied by a descriptive Note of Assumptions which does include comments on:
1. Changes:
(i)    The main changes to the underlying assumptions with respect to revenue / cash collections and disbursement of operational costs and SG&A,
(ii)    The main changes to the underlying assumptions with respect to Debt Deferrals (with the ECA backed transactions or other class of creditors)

    
(iii) The main changes with respect to Major Capex (and such Equity payments in relation to Major Capex)
And in each case whether those changes are due to timing issues or more fundamental changes compared to the initial Test Scheme Template for the Debt Deferral Extension (if not previously disclosed), or the previous Liquidity Forecast.
2. Mitigants or additional liquidity measure that are incorporated in the Liquidity Forecast, or planned but not yet incorporated in the Liquidity Forecast.

3.
monthly
Testing of the applicable Minimum Liquidity Covenant according to the amended loan documentation
4.
monthly
1.    Cash Burn Rate
2.    Cash Burn Rate adjusted to net deposits collection
3.    Net Liquidity position to Cash Burn rate
Def. Cash Burn rate means operating costs plus debt service plus capital expenditure (net of financing) Def. Cash Burn rate adjusted means operating costs plus debt service plus capital expenditure (net of financing) plus net deposits collection.
To be reported as long as the company achieves a positive (adj.) EBITDA after interest costs in two consecutive months
5.
monthly
Booking Curve - Average ticket price and occupancy for the season 2021 and season 2022 including a comparison of both parameters at the same point in time for bookings in 2019 for the season 2020
Format tbd with the ECA Agent / Figures to be provided in table / split by quarter mandatory
6.
monthly
Status of the fleet on a per vessel basis: Active vessels (+ occupancy level) / Vessels in layup / Vessels classified for sale
Fleet wide average of occupancy (incl. active and idle vessels)
7.
monthly
Confirmation that no dividends have been declared / paid within the current month.
8.
monthly
Development of the customer deposits:
1.    For cancelled cruises with starting dates in the past: Percentage of customers which requested a refund and percentage of those who re-booked or accepted a voucher.
2.    Overview of the amount of deposits which have been collected in connection with cruises in the next 4 quarters (split by quarter).
3.    Customer Deposits for cruises starting within the next 3 months
4.    Amount of collected deposits which are at risk to be refunded, based on the company’s own assumption of how many passengers of future cancelled cruises might choose a refund instead of a re-booking or a voucher.
 
    
9.
monthly
Other Creditors and Debtors:
1.    Please state clearly whenever terms and conditions (amount, interest, tenor, maturity schedule and securities) of existing credit facilities (incl. other debt holiday agreements) have been amended which fall into the same class as the ECAs or other classes.
2.    How are generally unsecured and secured financings treated?
3.    How do the debtors (like credit card companies) currently act? Do creditors withhold payments?
4.    Other Creditors and Debtors: What is the company asking from the other creditors (e.g. Bondholder, LeaseCos, FactorCos etc.) and what is their response? Do the respective documentation include cross default clauses?
 
10
bi-
monthly
Update about the changes of signed building contracts
The ECA shall be updated about the company`s current plans to amend any building contract or about any upcoming negotiations with the national yard.
11
quarterly
Unaudited financial statements or management accounts (incl. P&L (incl. EBITDA), balance sheet and cash flow statement)
12
quarterly
Company shall provide the calculation of the financial covenants which currently are waived.
    
Annex C
Replacement covenants with effect from the Guarantee Release Date

    



Exhibit N
Replacement covenants with effect from the Guarantee Release Date


It is acknowledged and agreed, with effect from the Guarantee Release Date, this Agreement shall be amended as follows:

“incur” means to create, incur, assume, guarantee or otherwise become directly or indirectly liable and “incurred” or “incurrence” shall have a correlative meaning.

“Inherited Indebtedness” means any Indebtedness (other than any Indebtedness that would, following the acquisition or creation of the relevant Subsidiary, become Permitted Principal Subsidiary Indebtedness or Permitted Non-Principal Subsidiary Indebtedness) of any corporation that becomes a Subsidiary of the Borrower after the Guarantee Release 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 Indebtedness is in existence at the time such corporation becomes a Subsidiary of the Borrower and was not incurred by the Borrower or any of its Subsidiaries in anticipation thereof.

“Inherited Lien” means any Lien (other than a Lien that would, following the acquisition or creation of the relevant Subsidiary, become a Permitted Lien) in respect of any Inherited Indebtedness on any asset of any corporation that becomes a Subsidiary of the Borrower after the Guarantee Release 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.

“Non-Principal Subsidiary” means a Subsidiary other than a Principal Subsidiary.

“Permitted Principal Subsidiary Indebtedness” means:

a.    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower; and
b.    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes.
“Permitted Liens” means:

a.    Liens securing Government-related Obligations;
1
b.    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;
c.    Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue by more than 60 days or being diligently contested in good faith by appropriate proceedings;
d.    Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance or other forms of governmental insurance or benefits;
e.    Liens for current crew's wages and salvage;
f.    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;
g.    Liens on Vessels that:
(i)    secure obligations covered (or reasonably expected to be covered) by insurance;
(ii)    were incurred in the course of or incidental to trading such Vessel in connection with repairs or other work to such Vessel; or
(iii)    were incurred in connection with work to such Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;
provided that, in each case described in this clause (g), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;
h.    normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers' liens, rights of set-off or similar rights in favour of banks or other depository institutions;
i.    Liens in respect of rights of set-off, recoupment and holdback in favour of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business;
j.    Liens on cash or Cash Equivalents or marketable securities securing:
(i)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; or
(ii)    letters of credit that support such obligations;
2

k.    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
l.    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
m.    licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
n.    Liens on any property of Silversea identified in Section 2 of Exhibit F hereto,

“Permitted Non-Principal Subsidiary Indebtedness” means:

a.    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower;
b.    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; and
c.    other Indebtedness other than Indebtedness for borrowed money (it being agreed for this purpose that any Group Member Guarantee granted in connection with Indebtedness for borrowed money shall be considered to be Indebtedness for borrowed money).



3



1.    Sections 7.2.2 and 7.2.3 shall be deleted in their entirety and replaced with the following (and all other provisions and clause references shall be construed accordingly):
SECTION 7.2.2    Subsidiary Indebtedness and Liens.
(a)    With effect from the Guarantee Release Date and except to the extent permitted by Section 7.2.2(b) below:
(i)    the Borrower will not permit:
A.    any of its Principal Subsidiaries to incur any Indebtedness other than Permitted Principal Subsidiary Indebtedness; and
B.    any of its Non-Principal Subsidiaries to incur any Indebtedness other than Permitted Non-Principal Subsidiary Indebtedness; and
(ii)     the Borrower (having regard, in the case of any ECA Financed Vessel, to Section 7.2.10) will not, and will not permit any of its Subsidiaries to, permit to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired other than Permitted Liens.
(b)    Section 7.2.2(a) shall not, however, prohibit any Indebtedness or Lien provided that (but again having regard, in the case of any ECA Financed Vessel, to Section 7.2.10) immediately following the incurrence (including any Group Member Guarantees) of the Indebtedness or Lien (as applicable):
(i)    the sum of the aggregate principal amount (without duplication) of (x) Indebtedness incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness), (y) Indebtedness incurred by Non-Principal Subsidiaries (excluding Permitted Non-Principal Subsidiary Indebtedness) and (z) the Indebtedness secured by Liens (other than Permitted Liens) granted by any Group Member does not exceed 20.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
(ii)    in the event the Senior Debt Rating of the Borrower is at Investment Grade as given by either Moody’s and S&P (determined at the time of the incurrence of the Indebtedness or Lien), the sum of the aggregate principal amount (without duplication) of (x) Indebtedness incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness) and (y) the Indebtedness secured by Liens (excluding Permitted Liens) granted by any Group Member does not exceed 10.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
4

(iii)     in the event the Senior Debt Rating of the Borrower is below Investment Grade as given by both Moody’s and S&P (determined at the time of creation of the Lien or the granting of a Group Member Guarantee (as applicable)):
A.    the aggregate principal amount of Indebtedness secured by first priority Liens (excluding Permitted Liens) granted by any Group Member does not exceed 5% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
B.    the aggregate principal amount of Indebtedness secured by second (or lower) priority Liens (excluding Permitted Liens) granted by any Group Member does not exceed 5% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; and
C.    the sum of the aggregate principal amount (without duplication) of (x) Indebtedness (including any Group Member Guarantees) incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness) and (y) Indebtedness secured by Liens (excluding Permitted Liens) granted by any Group Member pursuant to (iii)(A) and (B) above does not exceed 10.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter,
provided that if, following the Guarantee Release Date, the Borrower enters into a transaction which results in the existence of any Inherited Lien or Inherited Indebtedness, and solely as a result of that Inherited Lien (and the related Inherited Indebtedness secured by that Inherited Lien) or Inherited Indebtedness, the thresholds referred to in this paragraph (b) are exceeded, whilst no breach of this clause shall be deemed to have occurred at the time of such transaction, no further Indebtedness or Liens of the type referred to in this paragraph (b) shall be permitted to be incurred or, as the case may, permitted to exist until such time as the Borrower is in compliance with the thresholds referred to above (and taking into account for such purpose any unsecured Inherited Indebtedness or Inherited Indebtedness secured by any Inherited Lien).
2.    Section 7.2.3 shall be deleted in its entirety and replaced with “Intentionally Omitted”.
3.    A new Section 7.2.10 shall be inserted as follows:

SECTION 7.2.10        Negative Pledge Over ECA Financed Vessels.
For the purposes of this Section 7.2.10:
5

“repaid” means scheduled repayments or voluntary or mandatory prepayment and not repayments arising following the acceleration of the relevant ECA Financing after the occurrence of an Event of Default; and
“credit support” means a Lien over any ECA Financed Vessel granted by any Group Member or a Group Member Guarantee from a Group Member (other than the Borrower) that owns (directly or indirectly) any ECA Financed Vessel.
In connection with the granting of any Lien or Group Member Guarantee pursuant to Section 7.2.2(b) above, no Group Member shall use any ECA Financed Vessel as credit support in respect of any Indebtedness except:
(i)    if more than 75.0% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel has been repaid by the relevant Group Member, that Group Member shall be entitled to grant credit support over or in respect of that ECA Financed Vessel on the basis, and in compliance with the terms of, Section 7.2.2(b); and
(ii)    if an amount equal to or higher than 15.0% but less than or equal to 75% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel has been repaid by the relevant Group Member (determined at the time the relevant credit support is provided), the relevant Group Member shall be entitled to provide such credit support over that ECA Financed Vessel on the basis of, and subject to the compliance with, the terms of, Section 7.2.2(b), provided that the amount of Indebtedness secured or supported (as applicable) by that credit support shall not exceed an amount equal to FV x (A / B) where:
FV = the fair value of that ECA Financed Vessel at the time of the provision of that credit support (as evidenced by the information to be provided pursuant to sub-paragraph (v) below);
A = the aggregate principal amount of Indebtedness incurred under the ECA Financing in respect of that ECA Financed Vessel which has been repaid by the relevant Group Member at the time the credit support is provided; and
B = the amount of Indebtedness originally incurred by the relevant Group Member under the ECA Financing in respect of that ECA Financed Vessel,
it being acknowledged and agreed that:
(iii)    where the relevant credit support being provided in accordance with this Section 7.2.10 is a Group Member Guarantee from a Group Member that owns (directly or indirectly) one or more ECA Financed Vessels but does not own (directly or indirectly) any other Vessels, the amount of Indebtedness that can be supported by such Group Member Guarantee shall be equal to the aggregate
6

amount of Indebtedness that would be permitted to be secured under this Section 7.2.10 if, instead of a Group Member Guarantee, each relevant Principal Subsidiary owning each relevant ECA Financed Vessel was to provide a Lien as credit support in respect of that Indebtedness;
(iv)     where the relevant credit support being provided in accordance with this Section 7.2.10 is a Group Member Guarantee from a Group Member that owns (directly or indirectly) one or more ECA Financed Vessels and other Vessels, the restrictions contained in this Section 7.2.10 as to the amount of the Indebtedness that can be supported by such credit support must be preserved at all times and, not later than five Business Days after the date upon which that Group Member grants the relevant Group Member Guarantee, the Borrower shall notify the Facility Agent in writing of such event and shall provide any information as may be reasonably requested by the Facility Agent to verify that the requirements of this Section 7.2.10 have been complied with following the provision of such Group Member Guarantee; and
(v)    not later than five Business Days after the date upon which a Group Member provides any credit support, the Borrower shall provide the Facility Agent with evidence as to its compliance with this Section 7.2.10, which evidence shall include all required calculations and other information required by the Facility Agent (acting reasonably) to determine such compliance; and
(vi)    no Group Member shall be entitled to use any ECA Financed Vessel as credit support in the manner contemplated by this Section 7.2.10:
(A)    until such time as the relevant Group Member has repaid at least 15.0% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel; and/or
(B)    at any time in which a Default has occurred and is continuing.



7

SIGNATORIES
Amendment Agreement in respect of Hull A35

Existing Borrower
SIGNED by Jacobus Pietersen
for and on behalf of
PALMERAIE FINANCE LIMITED
)
)
) 		/s/ Jacobus Pietersen
)
New Borrower
SIGNED by Antje M. Gibson, VP & Treasurer
for and on behalf of
ROYAL CARIBBEAN CRUISES LTD.
)
)
) 		/s/ Antje M. Gibson
)
Facility Agent
SIGNED by Claire Crawford
for and on behalf of
CITIBANK EUROPE PLC, UK BRANCH
)
)
) 		/s/ Claire Crawford
)
Security Trustee
SIGNED by Cristina Volc, Attorney
for and on behalf of
CITICORP TRUSTEE COMPANY LIMITED
)
)
)
/s/ Cristina Volc
)

Global Coordinator
SIGNED by Javier Espiago
for and on behalf of
CITIBANK N.A., LONDON BRANCH
)
)
)
/s/ Javier Espiago
)
The ECA Agent
SIGNED by Alexandra Penda
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
)
/s/ Alexandra Penda
)
French Coordinating Bank

SIGNED by Julie Bellais / F. Duez
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ F. Duez
    

The Lenders

SIGNED by Javier Espiago
for and on behalf of
CITIBANK EUROPE PLC
)
)
)
/s/ Javier Espiago
SIGNED by Julie Bellais / F. Duez
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ F. Duez
SIGNED by Alexandre de Vathaire, Export Finance-Origination EMEA-Managing Director France & UK / Georges Curey, Export Finance, Head of Transaction and CPM Teams EMEA
for and on behalf of
BNP PARIBAS SA
)
)
)
)
)
)
/s/ Alexandre de Vathaire
) /s/ Georges Curey
SIGNED by Alpa Shah / Masao Yokoyama
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
) 		/s/ Alpa Shah
) /s/ Masao Yokoyama
SIGNED by Valerie Mace, Director Cruise Finance
for and on behalf of
SOCIÉTÉ GÉNÉRALE
)
)
) 		/s/ Valerie Mace
SIGNED by PM Debreuille, Dírecteur Crédit Export / Emilie Boissier, Direction Crédit Export
for and on behalf of
SFIL
)
)
)
)
/s/ PM Debreuille
) /s/ Emilie Boissier
SIGNED by Carmen Molina Rodes / Francisco Verdugo Muñoz, Vice President
for and on behalf of
BANCO SANTANDER S.A.
)
)
)
)
/s/ Carmen Molina Rodes
) /s/ Francisco Verdugo Muñoz

SIGNED by Michael Schwarz / Christine Novotny
for and on behalf of
UNICREDIT BANK AG

)
)
)
/s/ Michael Schwarz
)
/s/ Christine Novotny
SIGNED by Luz Barroso García, Authorised Signatory / Ana Alonso, Authorized Signatory
for and on behalf of
BANCO BILBAO VIZCAYA ARGENTARIA S.A., PARIS BRANCH
)
)
)
)
)
/s/ Luz Barroso García
)
/s/ Ana Alonso
    
The Mandated Lead Arrangers

SIGNED by Javier Espiago
for and on behalf of
CITIBANK EUROPE PLC




)
)
)
/s/ Javier Espiago
)
SIGNED by Julie Bellais / F. Duez
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
)
/s/ Julie Bellais
)
/s/ F. Duez
SIGNED by Carmen Molina Rodes / Francisco Verdugo Muñoz, Vice President
for and on behalf of
BANCO SANTANDER S.A.
)
)
)
)
/s/ Carmen Molina Rodes
) /s/ Francisco Verdugo Muñoz
SIGNED by Alexandre de Vathaire, Export Finance-Origination EMEA-Managing Director France & UK / Georges Curey, Export Finance, Head of Transaction and CPM Teams EMEA
for and on behalf of
BNP PARIBAS SA
)
)
)
)
)
)
/s/ Alexandre de Vathaire
) /s/ Georges Curey
SIGNED by Alpa Shah / Masao Yokoyama
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
)
)
/s/ Alpa Shah
) /s/ Masao Yokoyama

SIGNED by Valerie Mace, Director Cruise Finance
for and on behalf of
SOCIÉTÉ GÉNÉRALE

)
)
)
/s/ Valerie Mace
)

SIGNED by Michael Schwarz / Christine Novotny
for and on behalf of
UNICREDIT BANK AG

)
)
)
/s/ Michael Schwarz
)
/s/ Christine Novotny

SIGNED by Luz Barroso García
for and on behalf of
BANCO BILBAO VIZCAYA ARGENTARIA S.A., PARIS BRANCH

)
)
)
)
)
/s/ Luz Barroso García
)

    

Exhibit 10.2
Dated 12 July 2021
HOEDISCUS FINANCE LIMITED
as Existing Borrower

ROYAL CARIBBEAN CRUISES LTD.
as New Borrower

CITIBANK EUROPE PLC, UK BRANCH
as Facility Agent

CITICORP TRUSTEE COMPANY LIMITED
as Security Trustee

CITIBANK N.A., LONDON BRANCH
as Global Coordinator

HSBC CONTINENTAL EUROPE
as French Coordinating Bank

SMBC BANK INTERNATIONAL PLC
as ECA Agent

CITIBANK N.A., LONDON BRANCH, BANCO SANTANDER S.A., PARIS BRANCH, BNP PARIBAS, HSBC CONTINENTAL EUROPE , SOCIETE GENERALE
and
SMBC BANK INTERNATIONAL PLC
as Mandated Lead Arrangers

AND

THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1
as Lenders

___________________________________

Amendment Agreement in connection with
the Credit Agreement in respect of
Hull No. L34 at Chantiers de l’Atlantique S.A.
___________________________________



Contents
Clause    Page
1    Interpretation and definitions
2
2    Amendment of the Novation Agreement
3
3    Conditions of effectiveness
3
4    Representations and Warranties
5
5    Incorporation of Terms
6
6    Fees, Costs and Expenses
6
7    Counterparts
6
8    Governing Law
7
Schedule 1 Lenders
8
Schedule 2 Form of Amendment Effective Date confirmation – Hull L34
9
Schedule 3 Form of Amended and Restated Novated Credit Agreement
10
Annex A Framework
11
Annex B Debt Deferral Extension Regular Monitoring Requirements
12
Annex C Replacement covenants with effect from the Guarantee Release Date
16





THIS AMENDMENT AGREEMENT (this Amendment) is dated 12 July 2021 and made BETWEEN:
(1)
HOEDISCUS FINANCE LIMITED as transferor (the Existing Borrower);
(2)
ROYAL CARIBBEAN CRUISES LTD. as transferee (the New Borrower);
(3)
CITIBANK EUROPE PLC, UK BRANCH as facility agent for the other Finance Parties (the Facility Agent);
(4)
CITICORP TRUSTEE COMPANY LIMITED as security trustee for itself and the other Finance Parties (the Security Trustee);
(5)
CITIBANK N.A. LONDON BRANCH as global coordinator (the Global Coordinator);
(6)
HSBC CONTINENTAL EUROPE (previously known as HSBC France) as French coordinating bank (the French Coordinating Bank);
(7)
SMBC BANK INTERNATIONAL PLC (previously known as Sumitomo Mitsui Banking Corporation Europe limited, Paris Branch) as ECA agent (the ECA Agent);
(8)
CITIBANK N.A., LONDON BRANCH, HSBC CONTINENTAL EUROPE (previously known as HSBC France), BANCO SANTANDER S.A., PARIS BRANCH, BNP PARIBAS, SOCIÉTÉ GÉNÉRALE and SMBC BANK INTERNATIONAL PLC as Mandated Lead Arrangers; and
(9)
THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders.
WHEREAS:
(A)    Reference is made to the facility agreement dated 24 July 2017 (as supplemented, amended and restated from time to time, the Facility Agreement) and made between (1) the Existing Borrower as borrower, (2) the banks and financial institutions named therein as original lenders, (3) the Mandated Lead Arrangers as mandated lead arrangers, (4) the Facility Agent as facility agent, (5) the Security Trustee as security trustee (6) the Global Coordinator as global coordinator, (7) the French Coordinating Bank as French coordinating bank and (8) the ECA Agent as ECA agent, pursuant to which the Lenders have agreed to make available a loan of up to €603,426,960 to the Existing Borrower in connection with the purchase by the Existing Borrower of the Receivable from the Seller pursuant to the Receivable Purchase Agreement.
(B)    This Amendment is supplemental to the novation agreement dated 24 July 2017 (as supplemented, amended and restated from time to time, the Novation Agreement) in respect of the financing of the acquisition of the Vessel pursuant to the Facility Agreement and made between, amongst others, (1) the Existing Borrower as the existing borrower, (2) the New Borrower as the new borrower, (3) the banks and financial institutions named therein as original lenders, (4) the Mandated Lead Arrangers as mandated lead arrangers, (5) the Facility Agent as facility agent, (6) the Security Trustee as security trustee, (7) the Global Coordinator as global coordinator, (8) the French Coordinating Bank as French coordinating bank and (9) SMBC Bank International plc as ECA agent.
(C)    The New Borrower has requested that the form of Novated Credit Agreement scheduled to the Novation Agreement (as such Novated Credit Agreement was previously amended and restated pursuant to the Third Novation Agreement Supplement) be amended and restated on the basis set out in this Amendment in order to reflect the Debt Deferral Extension Framework published by certain Export Credit Agencies (including BpiFAE) (the Framework).
    Page 1


(D)    The Parties have agreed to amend the Novation Agreement, and amend and restate the form of Novated Credit Agreement attached to the Novation Agreement, on the basis set out in this Amendment.

NOW IT IS AGREED as follows:
1    Interpretation and definitions
1.1    Definitions in the Facility Agreement and/or the Novation Agreement
(a)    Unless the context otherwise requires or unless otherwise defined in this Amendment, words and expressions defined in the Novation Agreement or the Facility Agreement shall have the same meanings when used in this Amendment (including in the recitals).
(b)    The principles of construction set out in clause 1.3 of the Novation Agreement shall have effect as if set out in this Amendment.
1.2    Definitions
In this Amendment:
Amendment Effective Date means the date specified as such in the certificate signed by the Facility Agent in accordance with clause 3.2.
ECA Financing has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Fee Letter means any letter between any Finance Party and the New Borrower setting out the fees payable in connection with this Amendment.
Financial Covenant Waiver Period has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Framework Information Package means the general test scheme/information package in connection with the "Debt Deferral Extension" application submitted by the New Borrower in order to obtain the benefit of the measures provided for in the Framework for the purpose of this Amendment and certain of the New Borrower’s obligations to be assumed under the replacement Novated Credit Agreement.
Loan Documents has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Party means each of the parties to this Amendment.
Third Novation Agreement Supplement means the supplemental agreement to the Novation Agreement dated 13 November 2020, entered into between the parties to the Novation Agreement and pursuant to which the Novation Agreement was amended in order to, amongst other things, replace the form of Novated Credit Agreement attached thereto.
1.3    Third party rights
Other than BpiFAE in respect of the rights of BpiFAE under the Finance Document and the Loan Documents, unless expressly provided to the contrary in a Finance Document or a Loan Document, no term of this Amendment is enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.

    Page 2


1.4    Designation
Each of the Parties designates this Amendment as a Loan Document for the purposes of the replacement Novated Credit Agreement and a Finance Document for the purposes of the Facility Agreement.
1.5    Security Trustee
Each of the parties acknowledges that the Security Trustee is entering into this Amendment on the irrevocable and unconditional instructions of the Facility Agent and the Security Trustee shall have all of the rights, powers and protections conferred on it under the Finance Documents hereunder.
2    Amendment of the Novation Agreement
2.1    In consideration of the mutual covenants in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree that, subject to the satisfaction of the conditions precedent set forth in clause 3:
(a)    the form of the Novated Credit Agreement (but without all its Exhibits which shall, unless otherwise amended and restated pursuant to paragraph (b) below, remain in the same form and continue to form part of the Novated Credit Agreement) set out in Schedule 3 of the Novation Agreement shall be (and it is hereby) amended and restated so as to read in accordance with the form of the amended and restated Novated Credit Agreement set out in Schedule 3; and
(b)    Annex A to Annex C hereto shall be attached to the form of the Novated Credit Agreement as new Exhibit L to Exhibit N thereto.
2.2    It is acknowledged and agreed that as a result of the amendment and restatement of the Novated Credit Agreement pursuant to this Amendment, clause 2.1(b) of the Third Novation Agreement Supplement shall no longer apply and accordingly the form of the replacement Novated Credit Agreement attached to the Third Novation Agreement Supplement shall be disregarded. All other provisions of the Third Novation Agreement Supplement shall continue in full force and effect.
3    Conditions of effectiveness
3.1    The agreement of the Parties referred to in clause 2 shall be subject to each of the following conditions being satisfied to the reasonable satisfaction of the Facility Agent:
(a)    the Facility Agent shall have received from the New Borrower:
(i)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Amendment and as to the truth and completeness of the attached resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Amendment, and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the New Borrower cancelling or amending such prior certificate; and
(ii)    a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the New Borrower;
(b)    the Facility Agent shall have received from the Existing Borrower:
(A)    a certificate from an authorised officer of the Existing Borrower, confirming that there have been no changes or amendments to its constitutional documents, certified copies of which were previously delivered to the Facility Agent pursuant to
    Page 3


the Facility Agreement, or attaching revised versions in case of any changes or amendments; and
(B)    a copy, certified by an authorised officer of the Existing Borrower, of (A) resolutions of its board of directors approving the transactions contemplated by this Amendment and authorising a person or persons to execute this Amendment and any notices or other documents to be given pursuant hereto and (B) any power of attorney issued pursuant to such resolutions (which shall be certified as being in full force and effect and not revoked or withdrawn);
(c)    the Facility Agent shall have received a duly executed copy of each Fee Letter;

(d)    the Facility Agent shall have received evidence that all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent) required to be paid by the New Borrower pursuant to clause 6 below, and all other documented fees and expenses that the New Borrower has otherwise agreed in writing to pay to the Facility Agent, have been paid or will be paid promptly upon being demanded;

(e)    an amendment to the BpiFAE Insurance Policy duly signed and issued in respect of the arrangements referred to in this Amendment either (i) in an original with ‘wet-ink’ signature(s) or (ii) if the execution of an original of the BpiFAE Insurance Policy is not practicable at the relevant time (having regard to the logistical difficulties caused by COVID-19), electronically signed and initialled, together with written confirmation from BpiFAE that (A) such electronic signature is binding upon BpiFAE, (B) BpiFAE will send an original executed ‘wet-ink’ version of the BpiFAE Insurance Policy to the ECA Agent and the Facility Agent as soon as practicable (again, having regard to the logistical difficulties caused by COVID-19) and (C) such electronically signed BpiFAE Insurance Policy is valid and enforceable irrespective of whether the signed and regularized ‘wet-ink’ policy has at that time been produced and circulated, and in each case, BpiFAE shall not have, prior to the Effective Date, delivered to the Facility Agent or the ECA Agent any notice seeking the cancellation, suspension or termination of the BpiFAE Insurance Policy;
(f)    the Facility Agent shall have received opinions, addressed to the Facility Agent (and capable of being relied upon by each Lender) from:
(i)    Watson Farley & Williams LLP, counsel to the New Borrower, as to matters of Liberian law (and being issued in substantially the same form as the corresponding Liberian legal opinion issued in respect of the original Novation Agreement);
(ii)    Norton Rose Fulbright LLP, counsel to the Facility Agent as to matters of English law (and being issued in substantially the same form as the corresponding English legal opinion issued in respect of the Third Novation Agreement Supplement);
(iii)    Norton Rose Fulbright LLP, counsel to the Facility Agent as to matters relating to the conformity of the BpiFAE Insurance Policy issued by BpiFAE in accordance with paragraph (e) above with the arrangements relating to the Framework set out in this Amendment and the form of replacement Novated Credit Agreement; and
(iv)    Walkers, legal advisors appointed by the Facility Agent as to matters of Cayman Islands law in respect of the Existing Borrower (and being issued in substantially the same form as the corresponding Cayman legal opinion issued in respect of the Third Novation Agreement Supplement),
or, where applicable, a written approval in principle (which can be given by email) by any of the above counsel of the arrangements contemplated by this Amendment and a confirmation that a formal opinion will follow promptly after the Amendment Effective Date;
    Page 4


(g)    evidence that the New Borrower has submitted the Framework Information Package to BpiFAE (including information related to crisis-related liquidity measures) as a basis for BpiFAE to assess the adequacy of the New Borrower’s crisis-related liquidity measures;
(h)    the representations and warranties set out in clause 4 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a Material Adverse Effect (which shall be accurate in all respects)) as of the Amendment Effective Date;
(i)    no Event of Default shall have occurred and be continuing or would result from the amendment of the Novation Agreement pursuant to this Amendment;
(j)    the Existing Borrower and the New Borrower shall, as required pursuant to clause 5, have each provided a letter to the Facility Agent which confirms that the relevant process agent has accepted its appointment as process agent in respect of this Amendment;
(k)    the Facility Agent shall have received a letter from the New Borrower, signed by its Chief Financial Officer, containing a commitment to publish on an annual basis, a publicly available environmental plan that includes (i) an annual measure (in accordance with other public methodology, including IMO methodology) of the greenhouse gas emissions of the New Borrower and its Subsidiaries (including the emissions of their respective vessels) for the two years preceding the date of the relevant publication and (ii) the New Borrower’s strategy to reduce the group’s greenhouse emissions, including details of specific measures implemented (or to be implemented) in order to achieve such reduction;
(l)    the Facility Agent shall have received from the Existing Borrower and the New Borrower such documentation and information as any Finance Party may reasonably request through the Facility Agent to comply with "know your customer" or similar identification procedures under all laws and regulations applicable to that Finance Party; and
(m)    the Facility Agent shall have received evidence that, as required pursuant to clause 9.6(c) of the Receivable Purchase Agreement, the Seller has consented to the amendments to the Novation Agreement set out in this Amendment,
it being acknowledged and agreed by the Facility Agent that the conditions referred to in paragraphs (c), (g), (j), (l) and (m) above have, at the date of this Amendment, been satisfied.
3.2    The Facility Agent shall notify the Lenders, the Existing Borrower and the New Borrower of the Amendment Effective Date by way of a confirmation in the form set out in Schedule 2 and such confirmation shall be conclusive and binding.
4    Representations and Warranties
4.1    The Existing Borrower shall be deemed to repeat the representations and warranties in clause 7.1 of the Facility Agreement on the date of this Amendment and the Amendment Effective Date, in each case, as if made with reference to the facts and circumstances existing on such dates.
4.2    The New Borrower represents and warrants that each of the representations set out in Article VI of the form of the replacement Novated Credit Agreement (other than Section 6.10) set out in Schedule 3 are true and correct as if made at the date of this Amendment and at the Amendment Effective Date, in each case with reference to the facts and circumstances existing on such day, as if references to the Loan Documents include this Amendment and as if the replacement Novated Credit Agreement was effective at the time of each such repetition.
4.3    In addition to the representations and warranties referred to in clause 4.2 above, the New Borrower:
(a)    represents and warrants to the Facility Agent and each Lender that it is the New Borrower’s intention for the terms of this Amendment and the amendments to be
    Page 5


incorporated into the form of the amended and restated Novated Credit Agreement pursuant to this Amendment to be substantially the same terms and amendments as those set out or to be set out in an amendment agreement in respect of each other ECA Financing in existence as at the date of this Amendment;
(b)    covenants and undertakes with the Facility Agent that (to the extent it has not already done so) it shall, on or before the Amendment Effective Date, or as soon as reasonably practicable thereafter enter into an amendment agreement (with such amendments being on substantially the same terms as those set out in this Amendment and the form of the amended and restated Novated Credit Agreement (as applicable)) to the finance documents in respect of each other ECA Financing in existence as at the date of this Amendment in order to substantially reflect the amendments set out in the form of the Amended Novated Agreement provided, however, that this paragraph (b) shall not apply in respect of any other ECA Financing where the lenders under that ECA Financing do not provide their consent to such amendment agreement where the arrangements contemplated by that amendment were proposed to be on substantially the same basis as set out in this Amendment (subject to logical and factual changes),
save that such other amendments shall in each case incorporate changes to reflect (i) any factual differences, (ii) that certain of the other ECA Financings shall contain provisions providing for the deferral of principal repayments to be made by the New Borrower under those ECA Financings in accordance with the Framework and (iii) any particular requirements of an ECA Guarantor, under that relevant ECA Financing.
5    Incorporation of Terms
The provisions of clauses 13 (Miscellaneous and notices), 14.2 (Submission to jurisdiction) and 14.3 (Waiver of immunity) of the Novation Agreement shall be incorporated into this Amendment as if set out in full in this Amendment and as if (a) references to each Party are references to each Party to this Amendment and (b) references to ‘this Agreement’ include this Amendment.
6    Fees, Costs and Expenses
6.1    The New Borrower shall pay to the Facility Agent (for its own account and for the account of the Lenders (as applicable)) and each other relevant Finance Party the fees in the amounts and at the times agreed in the Fee Letters.
6.2    The payment of the above fees shall be made free and clear of any deduction, restriction or withholding and in immediately available freely transferable cleared funds to such account(s) as the Facility Agent shall notify the New Borrower of in advance or, where applicable, in the relevant Fee Letter.
6.3    The New Borrower agrees to pay on demand, on an after-tax basis, all reasonable out-of-pocket costs and expenses in connection with:
(a)    the preparation, execution and delivery of; and
(b)    the administration, modification and amendment of,
this Amendment and all other documents to be delivered hereunder or thereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of Norton Rose Fulbright LLP as the legal adviser to the Lenders and the Facility Agent and the Security Trustee.
7    Counterparts
This Amendment may be executed in any number of counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original but all counterparts shall together constitute one and the same instrument. The Parties acknowledge and agree that they may execute this Amendment and any variation or amendment to the same, by electronic instrument. The Parties agree that the electronic signatures appearing on the
    Page 6


document shall have the same effect as handwritten signatures and the use of an electronic signature on this Amendment shall have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating this Amendment, and evidencing the Parties’ intention to be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests including contract management.
8    Governing Law
This Amendment, and all non-contractual obligations arising in connection with it, shall be governed by and construed in accordance with English law.
The Parties have executed this Amendment the day and year first before written.
    Page 7


Schedule 1
Lenders
Banco Santander, S.A, Paris Branch
BNP Paribas
HSBC Continental Europe
Société Générale
SMBC Bank International plc
SFIL




Schedule 2
[OMITTED]



Schedule 3
Form of Amended and Restated Novated Credit Agreement



HULL NO. L34 CREDIT AGREEMENT
dated 24 July 2017 as novated, amended and restated on the Actual Delivery Date pursuant to a novation agreement dated 24 July 2017 (as amended and restated by a first novation agreement supplement dated 12 March 2020, as amended by a second novation agreement supplement dated 29 August 2020, as further amended and restated by a third novation agreement supplement dated 13 November 2020 and as further amended and restated by a fourth novation agreement supplement dated 12 July 2021)
BETWEEN
Royal Caribbean Cruises Ltd. as the Borrower,
the Lenders from time to time party hereto,
Citibank N.A., London Branch as Global Coordinator
SMBC Bank International plc as ECA Agent and
Citibank Europe plc, UK Branch as Facility Agent and
Citibank N.A., London Branch, Banco Santander, S.A., Paris Branch, BNP Paribas, HSBC Continental Europe, Société Générale and SMBC Bank International plc as Mandated Lead Arrangers


TABLE OF CONTENTS
PAGE
Article I

DEFINITIONS AND ACCOUNTING TERMS
Section 1.1.    Defined Terms    2
Section 1.2.    Use of Defined Terms    27
Section 1.3.    Cross-References    27
Section 1.4.    Accounting and Financial Determinations    27
Article II

COMMITMENTS AND BORROWING PROCEDURES
Section 2.1.    Commitment    28
Section 2.2.    Commitment of the Lenders; Termination and Reduction of Commitments    28
Section 2.3.    Borrowing Procedure    29
Section 2.4.    Funding    30
Article III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
Section 3.1.    Repayments    30
Section 3.2.    Prepayment.    31
Section 3.3.    Interest Provisions    32
Section 3.4.    Commitment Fees    34
Article IV

CERTAIN EURO RATE AND OTHER PROVISIONS
Section 4.1.    EURO Rate Lending Unlawful    35
Section 4.2.    Deposits Unavailable    35
Section 4.3.    Increased EURO Rate Loan Costs, etc.    36
Section 4.4.    Funding Losses    38
Section 4.5.    Increased Capital Costs    39
Section 4.6.    Taxes    40
Section 4.7.    Reserve Costs    42
Section 4.8.    Payments, Computations, etc.    42
Section 4.9.    Replacement Lenders, etc.    43
Section 4.10.    Sharing of Payments    44
Section 4.11.    Set-off    45
Section 4.12.    Use of Proceeds    45
Section 4.13.    FATCA Information    45
Section 4.14.    Resignation of the Facility Agent    46
i


Article V

CONDITIONS TO BORROWING
Section 5.1.    Advance of the Loan    47
Article VI

REPRESENTATIONS AND WARRANTIES
Section 6.1.    Organization, etc.    50
Section 6.2.    Due Authorization, Non-Contravention, etc.    50
Section 6.3.    Government Approval, Regulation, etc.    51
Section 6.4.    Compliance with Environmental Laws    51
Section 6.5.    Validity, etc.    51
Section 6.6.    No Default, Event of Default or Prepayment Event    51
Section 6.7.    Litigation    51
Section 6.8.    The Purchased Vessel    51
Section 6.9.    Obligations rank pari passu; Liens    52
Section 6.10.    Withholding, etc.    52
Section 6.11.    No Filing, etc. Required    52
Section 6.12.    No Immunity    52
Section 6.13.    Investment Company Act    52
Section 6.14.    Regulation U    52
Section 6.15.    Accuracy of Information    53
Section 6.16.    Compliance with Laws    53
Article VII

COVENANTS
Section 7.1.    Affirmative Covenants    53
Section 7.2.    Negative Covenants    59
Section 7.3.    Covenant Replacement.    73
Section 7.4.    Lender incorporated in the Federal Republic of Germany    73
Article VIII

EVENTS OF DEFAULT
Section 8.1.    Listing of Events of Default    74
Section 8.2.    Action if Bankruptcy    76
Section 8.3.    Action if Other Event of Default    76
Article IX

PREPAYMENT EVENTS
Section 9.1.    Listing of Prepayment Events    76
Section 9.2.    Mandatory Prepayment    78
Section 9.3.    Mitigation    79
ii


Article X

THE FACILITY AGENT AND THE ECA AGENT
Section 10.1.    Actions    79
Section 10.2.    Indemnity    79
Section 10.3.    Funding Reliance, etc.    80
Section 10.4.    Exculpation    81
Section 10.5.    Successor    82
Section 10.6.    Loans by the Facility Agent    83
Section 10.7.    Credit Decisions    83
Section 10.8.    Copies, etc.    83
Section 10.9.    The Agents’ Rights    83
Section 10.10.    The Facility Agent’s Duties    84
Section 10.11.    Employment of Agents    84
Section 10.12.    Distribution of Payments    84
Section 10.13.    Reimbursement    84
Section 10.14.    Instructions    85
Section 10.15.    Payments    85
Section 10.16.    “Know your customer” Checks    85
Section 10.17.    No Fiduciary Relationship    85
Section 10.18.    Illegality    85
Article XI

MISCELLANEOUS PROVISIONS
Section 11.1.    Waivers, Amendments, etc.    86
Section 11.2.    Notices    87
Section 11.3.    Payment of Costs and Expenses    88
Section 11.4.    Indemnification    88
Section 11.5.    Survival    90
Section 11.6.    Severability    90
Section 11.7.    Headings    90
Section 11.8.    Execution in Counterparts, Effectiveness, etc.    90
Section 11.9.    Third Party Rights    90
Section 11.10.    Successors and Assigns    90
Section 11.11.    Sale and Transfer of the Loan; Participations in the Loan    90
Section 11.12.    Other Transactions    94
Section 11.13.    BpiFAE Insurance Policy    94
Section 11.14.    Law and Jurisdiction    96
Section 11.15.    Confidentiality    96
Section 11.16.    French Authority Requirements    97
Section 11.17.    Waiver of immunity    97
Section 11.18.    Acknowledgement and Consent to Bail-In of EEA Financial Institutions    98



iii


EXHIBITS
Exhibit A - Form of Loan Request
Exhibit B-1 - Form of Opinion of Liberian Counsel to Borrower
Exhibit B-2 - Form of Opinion of English Counsel to the Facility Agent and the Lenders
Exhibit B-3 - Form of Opinion of French Counsel to the Facility Agent and the Lenders
Exhibit B-4 - Form of Opinion of US Tax Counsel to the Lenders
Exhibit C - Form of Lender Assignment Agreement
Exhibit D - Form of Certificate of French Content
Exhibit E-1 - Form of Delivery Non-Yard Costs Certificate
Exhibit E-2 - Form of Final Non-Yard Costs Certificate

Exhibit F - Silversea Indebtedness and Liens

Exhibit G - Form of First Priority Guarantee

Exhibit H - Form of Second Priority Guarantee

Exhibit I - Form of Third Priority Guarantee

Exhibit J - Form of Senior Parties Subordination Agreement

Exhibit K - Form of Other Senior Parties Subordination Agreement

Exhibit L – Framework

Exhibit M – Debt Deferral Extension Regular Monitoring Requirements

Exhibit N – Replacement covenants with effect from the Guarantee Release Date

iv


CREDIT AGREEMENT
HULL NO. L34 CREDIT AGREEMENT, dated 24 July 2017 as novated, amended and restated on the Actual Delivery Date (as defined below), and as amended and restated by a first novation agreement supplement dated 12 March 2020, and as further amended by a second novation agreement supplement dated 29 August 2020, and as further amended and restated by a third novation agreement supplement dated 13 November 2020, and as further novated and restated by a fourth novation agreement supplement dated 12 July 2021 is among Royal Caribbean Cruises Ltd., a Liberian corporation (the “Borrower”), SMBC Bank International plc in its capacity as agent for the Lenders referred to below in respect of BpiFAE-related matters (in such capacity, the “ECA Agent”), Citibank Europe plc, UK Branch in its capacity as facility agent (in such capacity, the “Facility Agent”) and the financial institutions listed in Schedule 1 to the Novation Agreement (as defined below) as lenders (in such capacity, together with each of the other Persons that shall become a “Lender” in accordance with clause 12 of the Novation Agreement or Section 11.11.1 hereof, each of them individually a “Lender” and, collectively, the “Lenders”).
W I T N E S E T H:
WHEREAS,
(A)    The Borrower and Chantiers de l’Atlantique (previously known as STX France S.A.) (the “Builder”) have entered on 16 February 2015 into a Contract for the Construction and Sale of Hull No. L34 (as amended from time to time, the “Construction Contract”) pursuant to which the Builder has agreed to design , construct, equip, complete, sell and deliver the passenger cruise vessel bearing Builder’s hull number L34 which shall be owned by the Nominated Owner (the “Purchased Vessel”);
(B)    The Lenders have agreed to make available to the Borrower, upon the terms and conditions contained herein, a Euro loan facility calculated on the amount (the “Maximum Loan Amount”) equal to the EUR sum of:
(i)    eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel, and including Non-Yard Costs of up to EUR 76,000,000 (the “Maximum Non-Yard Costs Amount”) and the Other Basic Contract Price Increases (as defined below) for the Purchased Vessel of up to EUR 10,000,000 (but which, when aggregated with the Non-Yard Costs, shall not exceed an amount equal to EUR 76,000,000), and all of which amounts shall not exceed in aggregate EUR 707,167,000;
(ii)    eighty per cent (80%) of the change orders of up to EUR 123,116,700 effected in accordance with the Construction Contract; and
(iii)    100% of the BpiFAE Premium (as defined below), being an amount no greater than EUR 684,153,769;
(C)    Of the amounts referred to in recital (B)(i) and (ii) above, the Lenders have made certain amounts available to the Original Borrower during the period prior to the Actual Delivery Date pursuant to this Agreement (the liability for which amount has been assumed by the Borrower following the novation of this Agreement pursuant to the Novation Agreement) and, in relation to the amount referred to in recital (B)(i), the balance has been or shall be made
    1

available to the Borrower as an Additional Advance pursuant to the Novation Agreement and this Agreement.
(D)    The Parties have previously amended this Agreement pursuant to the Third Novation Agreement Supplement (as defined below) in connection with the provision of the Guarantees (as defined below).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1.    DEFINED TERMS. The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall, when capitalized, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):
“Accumulated Other Comprehensive Income (Loss)” means at any date the Borrower’s accumulated other comprehensive income (loss) on such date, determined in accordance with GAAP.
“Actual Delivery Date” means the date on which the Purchased Vessel is delivered by the Builder to, and accepted by, the Borrower under the Construction Contract, being also the date on which the final balance of the Loan is advanced by way of the Additional Advances.
“Additional Advances” is defined in the Novation Agreement.
“Additional Guarantee” means a guarantee of the Obligations provided by a New Guarantor in a form and substance substantially the same as the other Guarantees (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and acceptable to BpiFAE.
“Additional Subordination Agreement” means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee, as applicable, in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and the beneficiaries of any Indebtedness incurred by the relevant Guarantor, as applicable, and acceptable to BpiFAE.
“Adjustable Amount” means, as of any time of determination, $500,000,000; provided if the aggregate amount of New Capital is equal to or greater than $500,000,000, then the Adjustable Amount shall be $350,000,000.
“Adjusted Cash Balance” means, as of any date (the “Measurement Date”), the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP plus (a) any amounts available to be drawn by the Borrower and/or any of its Subsidiaries under committed but undrawn term loan or revolving credit facility agreements (excluding any amounts available under agreements where the proceeds are only intended to be used to fund the purchase of new Vessels) and less (b) the sum of (i) any scheduled payments of principal or interest (but for the purposes of
    2

anticipating any interest liabilities, the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the Measurement Date) in respect of debt during the period commencing on the Measurement Date and ending on the date that is six months thereafter, (ii) any customer deposits held by the Borrower or its Subsidiaries for cruises that are scheduled to commence within three months of the Measurement Date and (iii) any planned Non-Financed Capex during the period commencing on the Measurement Date and ending on the date that is six months thereafter.
“Adjusted EBITDA After Principal and Interest” means, for any Last Reported Fiscal Quarter, the Borrower’s EBITDA After Principal and Interest for such period, excluding those items, if any, that the Borrower has excluded in determining “Adjusted Net Income” for such period as disclosed in the Borrower’s annual report on 10-K or quarterly report on 10-Q, as applicable, for such Last Reported Fiscal Quarter, as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
“Affiliate” of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or indirectly, power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
“Agent” means either the ECA Agent or the Facility Agent and “Agents” means both of them.
“Agreement” means, on any date, this credit agreement as originally in effect on the Signing Date and as novated, amended and restated by the Novation Agreement and as thereafter from time to time amended, supplemented, amended and restated, or otherwise modified and in effect on such date.
“Annex VI” means Annex VI of the Protocol of 1997 (as subsequently amended from time to time) to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol), as modified by the Protocol of 1978 relating thereto.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.
“Anticipated Delivery Date” means the Expected Delivery Date (as defined in the Receivable Purchase Agreement) as at the Signing Date, namely 21 October 2021.
“Applicable Commitment Rate” means (x) from the Signing Date up to and including the date falling two years prior to the Anticipated Delivery Date, 0.15% per annum, (y) from the day following the date falling two years prior to the Anticipated Delivery Date up to and including the date falling one year prior to the Anticipated Delivery Date, 0.28% per annum, and (z) from the day following the date falling one year prior to the Anticipated Delivery Date until the Commitment Fee Termination Date, 0.33% per annum.
“Applicable Jurisdiction” means the jurisdiction or jurisdictions under which the Borrower is organized, domiciled or resident or from which any of its business activities are conducted or in which any of its properties are located and which has jurisdiction over the subject matter being addressed.
    3

“Approved Appraiser” means any of the following: Barry Rogliano Salles, Paris, H Clarkson & Co. Ltd., London, R.S. Platou Shipbrokers, Norway, or Fearnley AS, Norway.
“Assignee Lender” is defined in Section 11.11.1.
“Authorized Officer” means those officers of the Borrower authorized to act with respect to the Loan Documents and whose signatures and incumbency shall have been certified to the Facility Agent by the Secretary or an Assistant Secretary of the Borrower.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule; and (b) in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
“Bank Indebtedness” means the Borrower’s Indebtedness up to a maximum aggregate principal amount of $5,300,000,000 under the following agreements (as amended, restated, supplemented, extended, refinanced, replaced or otherwise modified from time to time): (a) the USD1,550,000,000 revolving credit facility maturing in 2022 with Nordea Bank AB (publ), New York Branch as agent, (b) the USD1,925,000,000 revolving credit facility maturing in 2024 with The Bank of Nova Scotia as agent, (c) the USD1,000,000,000 term loan maturing on 5 April 2022 with Bank of America, N.A. as agent, (d) the USD300,000,000 term loan maturing on 7 June 2028 with Nordea Bank ABP, New York Branch as agent, (e) the USD55,827,065 term loan maturing on 5 December 2022 with Sumitomo Mitsui Banking Corporation as agent, (f) the €80,000,000 term loan maturing in November 2024 with Skandinaviska Enskilda Banken AB (publ) as agent, (g) the USD130,000,000 term loan maturing on 2 February 2023 with Industrial and Commercial Bank of China Limited, New York Branch as agent, (h) that certain guarantee dated 18 July 2016 with SMBC Leasing and Finance, Inc. as agent in connection with liabilities relating to the “Lease”, the “Construction Agency Agreement”, the “Participation Agreement” and any other “Operative Document” (as each term is defined in such guarantee) and (i) any other agreement (other than in connection with Credit Card Obligations) as to which the Second Priority Guarantors provide a first priority guarantee package.
“Bank of Nova Scotia Agreement” means the U.S. $1,925,000,000 amended and restated credit agreement dated as of 4 December 2017 among the Borrower, as borrower, the various financial institutions as are or shall become parties thereto, as lenders, and The Bank of Nova Scotia, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Basic Contract Price” is as defined in the Construction Contract. “Borrower” is defined in the preamble.
“BpiFAE” means BpiFrance Assurance Export, the French export credit agency, a French société par action simplifiée à associé unique with its registered office at 27-31, avenue
    4

du Général Leclerc, 94710 Maisons-Alfort Cedex, France, registered at the trade and companies registry of Créteil under number 815 276 308 and includes its successors in title or any other person succeeding to BpiFrance Assurance Export in the role as export credit agency of the Republic of France to manage and provide under its control, on its behalf and in its name the public export guarantees as provided by article L 432-1 of the French insurance code.
“BpiFAE Enhanced Guarantee” means the enhanced guarantee (garantie rehaussée) issued or to be issued by BpiFAE to the benefit of CAFFIL in accordance with article 84 of the French Amending Finance Law 2012 (as amended) in relation to the refinancing of SFIL’s participation and Commitments under the Loan, and any other documents (including any security) entered into or to be entered into by SFIL with CAFFIL and/or BpiFAE in relation thereto.
“BpiFAE Insurance Policy” means the export credit insurance policy in respect of the Loan issued by BpiFAE for the benefit of the Lenders.
“BpiFAE Premium” means the premium payable to BpiFAE under and in respect of the BpiFAE Insurance Policy.
“Builder” is defined in the preamble.
“Business Day” means any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York City, London, Madrid or Paris and (in relation to any date for payment or purchase of Euro) any TARGET Day, and if the applicable Business Day relates to an advance of all or part of the Loan, an Interest Period, prepayment or conversion, in each case with respect to the Loan bearing interest by reference to the EURO Rate, a day on which dealings in deposits in Euros are carried on in the interbank market within the Participating Member States.
“B34 Facility Amendment Date” means 20 March 2018, the effective date of the third supplemental agreement dated 16 March 2018 to (among other things) a credit facility supported by BpiFAE (pertaining to Hull No. B34) reflecting the alignment of certain provisions and covenants with the Borrower’s revolving credit facility refinanced on 12 October 2017.
“CAFFIL” means Caisse Française de Financement Local, a French société anonyme, with its registered office at 1-3 rue du Passeur de Boulogne, 92130 Issy-les- Moulineaux, France, registered at the trade and companies registry of Nanterre under number 421 318 064.
“Capital Lease Obligations” means obligations of the Borrower or any Subsidiary of the Borrower under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases.
“Capitalization” means, at any date, the sum of (a) Net Debt on such date, plus (b) Stockholders’ Equity on such date.
“Capitalized Lease Liabilities” means the principal portion of all monetary obligations of the Borrower or any of its Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases, and, for purposes of this Agreement and each other Loan Document, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
    5

“Cash Equivalents” means all amounts other than cash that are included in the “cash and cash equivalents” shown on the Borrower’s balance sheet prepared in accordance with GAAP.
“Change of Control” means an event or series of events by which (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 50% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
“CIRR” means 0.74% per annum being the Commercial Interest Reference Rate determined in accordance with the OECD Arrangement for Officially Supported Export Credits to be applicable to the Loan hereunder.
“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.
“Commitment” is defined in Section 2.2 and means, relative to any Lender, such Lender’s obligation to make the Loan pursuant to Section 2.1.
“Commitment Fees” is defined in Section 3.4.
“Commitment Fee Termination Date” is defined in Section 3.4.
“Commitment Termination Date” means the Back Stop Date (as defined in the Receivable Purchase Agreement) (or such later date as the Lenders and BpiFAE may agree).
“Construction Contract” is defined in the preamble.
“Contract Price” is as defined in the Construction Contract and which includes a lump sum amount in respect of the Non-Yard Costs.
“Contractual Delivery Date” means, at any time, the date which at such time is the date specified for delivery of the Purchased Vessel under the Construction Contract, as such date may be modified from time to time pursuant to the terms of the Construction Contract.
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“Covenant Modification Date” means the later to occur of (a) the expiry of the Financial Covenant Waiver Period and (b) the date upon which the financial covenants set out in Section 7.2.4 have been modified in this Agreement in a form and substance satisfactory to BpiFAE, the Borrower and the Lenders.
“Covered Taxes” is defined in Section 4.6.
“Credit Card Obligations” means any obligations of the Borrower under credit card processing arrangements or other similar payment processing arrangements entered into in the ordinary course of business of the Borrower.
“DDTL Indebtedness” means the Borrower’s Indebtedness (or, if such Indebtedness has not yet been incurred, the commitments by lenders to provide Indebtedness to the Borrower as of the effectiveness of the Third Novation Agreement Supplement) in connection with that certain Commitment Letter, dated as of August 12, 2020, between the Borrower and MORGAN STANLEY SENIOR FUNDING INC. (as amended, restated, extended, supplemented, refinanced, replaced or otherwise modified from time to time).
“Debt Deferral Extension Regular Monitoring Requirements" means the general test scheme/reporting package in the form set out in Exhibit M to this Agreement submitted or to be submitted (as the case may be) by the Borrower in accordance with Section 7.1.1(i).
“Debt Incurrence” means any incurrence of Indebtedness for borrowed money by any Group Member, whether pursuant to a public offering or a Rule 144A or other private placement of debt securities (including any secured debt securities (but excluding any unsecured debt securities) convertible into equity securities) or an incurrence of loans under any loan or credit facility, or any issuance of bonds, other than:
(a)    any Indebtedness (but having regard, in respect of any secured and/or guaranteed Indebtedness, to the restrictions set out in Section 7.2.9(b)) incurred by a Group Member between 1 April 2020 and the earlier of (i) the end of the Early Warning Monitoring Period and (ii) 31 December 2023 (or such later date as may, with the prior consent of BpiFAE, be agreed between the Borrower and the Lenders) (the “Debt Incurrence Trigger Date”);
(b)    Indebtedness incurred by a Group Member pursuant to an intra-Group loan from another Group Member, provided that no Group Member shall be permitted to incur any such Indebtedness at any time where an Event of Default or a Prepayment Event has occurred and is continuing;
(c)    Indebtedness incurred to refinance (and for this purpose having regard to the applicable provisions of Section 7.2.9) a maturity payment under any existing loan or credit facility (including any crisis and/or recovery-related Indebtedness incurred by a Group Member prior to the Debt Incurrence Trigger Date) or issued bonds of a Group Member, provided that;
(i)    in the case of any such refinancing, the amount of such Indebtedness being used in connection with that refinancing does not increase the aggregate principal amount of such Indebtedness or the commitments outstanding at the time of that refinancing and is otherwise incurred on a basis permitted pursuant to this Agreement (including, without limitation, in relation to the provision of
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any Liens or guarantees that may be provided to support the relevant refinancing arrangement); and
(ii)    in the case of the refinancing of crisis and/or recovery-related Indebtedness of the type referred to above, that refinancing shall either (A) reduce the interest burden of the Borrower (and for such purposes the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the time of the new debt incurrence) or (B) replace the existing secured and/or guaranteed Indebtedness with unsecured and unguaranteed debt;
(d)    Indebtedness provided by banks or other financial institutions under the Borrower’s senior unsecured revolving credit facilities in an aggregate amount not greater than the commitments thereunder as in effect on 19 February 2021 plus the amount of any existing uncommitted incremental facilities (i.e. any unused accordion) on such facilities;
(e)    Indebtedness provided by banks or other financial institutions which, as at 19 February 2021, is committed but yet to be incurred in respect of the DDTL Indebtedness (but, in respect of that DDTL Indebtedness, up to a maximum amount of $700,000,000);
(f)    any of the following types of indebtedness in each case incurred in the ordinary course of business of any Group Member and with the prior written consent of BpiFAE:
(i)    the issuances of commercial paper;
(ii)    Capitalized Lease Liabilities;
(iii)    purchase money indebtedness;
(iv)    indebtedness under overdraft facilities; and
(v)    financial obligations in connection with repurchase agreements and/or securities lending arrangements; and
(g)    vessel financings (including the financing of pre-delivery contract installments, change orders, owner furnished equipment costs or other such similar arrangements) in respect of vessels for which shipbuilding contracts have been executed on or prior to 28 April 2020 (provided, however, that a refinancing of a vessel financing shall not be included in this carve-out (g)).
“Default” means any Event of Default or any condition, occurrence or event which, after notice or lapse of time or both, would constitute an Event of Default.
“Delivery Non-Yard Costs Certificate” means the certificate to be provided to the Facility Agent in the form of Exhibit E-1 on or prior to the Actual Delivery Date certifying the amount in EUR and/or Dollars, as applicable, of the Paid Non-Yard Costs and the Unpaid Non-Yard Costs as at the Actual Delivery Date, duly signed by the Borrower and endorsed by the Builder.
“Dispose” means to sell, transfer, license, lease, distribute or otherwise transfer, and “Disposition” shall have a correlative meaning.
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"Disruption Event" means either or both of:
(a)    a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Loan Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties; or
(b)    the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a party preventing that, or any other, party:
(i)    from performing its payment obligations under the Loan Documents; or
(ii)    from communicating with other parties or in accordance with the terms of the Loan Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party whose operations are disrupted.
“Dollar” and the sign “$” mean lawful money of the United States.
“Early Warning Monitoring Period” means the period beginning on the Novation Effective Time and ending on the last day of two consecutive Fiscal Quarters in which the Borrower has achieved a higher Adjusted EBITDA After Principal and Interest for such Fiscal Quarters when compared with the same calculation for the corresponding Fiscal Quarters of the 2019 Fiscal Year, as evidenced pursuant to the certificate to be submitted by the Borrower pursuant to Section 7.1.1(l) (and such date shall be notified to the Borrower by the Facility Agent).
“EBITDA After Principal and Interest” means, for any Last Reported Fiscal Quarter, the Borrower’s consolidated operating income for such period plus any depreciation and amortization expenses that were deducted in calculating consolidated operating income for such period and minus (a) any scheduled amortization or maturity payments made during such period and (b) consolidated interest expense of the Borrower for such period (net of any capitalized interest and interest income), in each relevant case as determined in accordance with GAAP.
“ECA Agent” is defined in the preamble.
“ECA Financed Vessel” means any Vessel subject to any ECA Financing.
“ECA Financing” means any financing arrangement pursuant to which one or more ECA Guarantor provides guarantees or other credit support (including but not limited to a sale and leaseback transaction or bareboat charter or lease or an arrangement whereby a Vessel under construction is pledged as collateral to secure the indebtedness of a shipbuilder, and, for the avoidance of doubt, committed but undrawn export credit agency facilities), entered into by the Borrower or a Subsidiary for the purpose of financing or refinancing all or any part of the purchase price, cost of design or construction of a Vessel or Vessels or the acquisition of Equity Interests of entities owning, or to own, Vessels.

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“ECA Guarantor” means BpiFrance Assurance Export, Finnvera plc or Euler Hermes Aktiengesellschaft (or, in each case, any successor thereof).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of a Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“Effective Date” means the date this Agreement becomes effective pursuant to Section 11.8.
“Effective Time” means the Novation Effective Time as defined in the Novation Agreement.
“Environmental Laws” means all applicable federal, state, local or foreign statutes, laws, ordinances, codes, rules and regulations (including consent decrees and administrative orders) relating to the protection of the environment.
“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities) but excluding any debt securities convertible into such Equity Interests.
“Escrow Account” means the Euro escrow account of the Borrower opened or to be opened with the Escrow Account Bank for the purpose of receiving the relevant amount of the Additional Advances in respect of Unpaid Non-Yard Costs in accordance with Section 2.3f).
“Escrow Account Bank” means Citibank N.A., London Branch of Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB.
“Escrow Account Security” means the account security in respect of the Escrow Account executed or, as the context may require, to be executed by the Borrower in favour of the Security Trustee in the form agreed by the Lenders and the Borrower on or about the Restatement Date.
“Escrow Agency and Trust Deed” means the agency and trust deed executed or, as the context may require, to be executed by, amongst others, the Borrower, the parties to this Agreement and the Security Trustee.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EUR”, “Euro” and the sign “€” mean the currency of participating member states of the European Monetary Union pursuant to Council Regulation (EC) 974/98 of 3 May 1998, as amended from time to time.
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“EURO Rate” means the rate per annum of the offered quotation for deposits in Euros for six months (or for such other period as shall be agreed by the Borrower and the Facility Agent) which appears on Thomson Reuters EURIBOR01 Page (or any successor page) at or about 11:00 a.m. (Central European Time) two (2) TARGET Days (and which are also days on which banks are open for business in London (excluding Saturdays, Sundays and legal holidays)) before the commencement of the relevant Interest Period; provided that:
a)    subject to Section 3.3.6, if no such offered quotation appears on Thomson Reuters EURIBOR01 Page (or any successor page) at the relevant time the EURO Rate shall be the Historic Screen Rate or, if it is not possible to calculate an Historic Screen Rate, it shall be the rate per annum certified by the Facility Agent to be the average of the rates quoted by the Reference Banks as the rate at which each of the Reference Banks was (or would have been) offered deposits of Euros by prime banks in the interbank market within the Participating Member States in an amount approximately equal to the amount of the Loan and for a period of six months;
b)    for the purposes of determining the post-maturity rate of interest under Section 3.3.4, the EURO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Facility Agent may determine after consultation with the Lenders, which period shall be no longer than one month unless the Borrower otherwise agrees; and
c)    if that rate is less than zero, the EURO Rate shall be deemed to be zero. “Event of Default” is defined in Section 8.1.
“Existing Principal Subsidiaries” means each Subsidiary of the Borrower that is a Principal Subsidiary on the Signing Date.
“Facility Agent” is defined in the preamble and includes each other Person as shall have subsequently been appointed as the successor Facility Agent, and as shall have accepted such appointment, pursuant to Section 10.5.
“FATCA” means (a) Sections 1471 through 1474 of the Code, as in effect at the date hereof, and any current or future regulations promulgated thereunder or official interpretations thereof, (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
“FATCA Deduction” means a deduction or withholding from a payment under a Loan Document required by FATCA.
“FATCA Exempt Party” means a party to this Agreement that is entitled to receive payments free from any FATCA Deduction.
“Fee Letter” means any letter entered into by reference to this Agreement between any or all of the Facility Agent, the Mandated Lead Arrangers, the Arrangers, the Lenders and/or the Borrower setting out the amount of certain fees referred to in, or payable in connection with, this Agreement.
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“Final Maturity” means twelve (12) years after the Actual Delivery Date.
“Final Non-Yard Costs Certificate” means the certificate to be provided to the Facility Agent in the form of Exhibit E-2 on or prior to the NYC Cut Off Date certifying the amount of the Paid Non-Yard Costs as at the date of that certificate, duly signed by the Borrower.
“Financial Covenant Waiver Period” means the period from and including the Novation Effective Time to and including 30 September 2022.
“First Novation Agreement Supplement” means the supplemental agreement dated 12 March 2020 and made between, amongst others, the Original Borrower and the parties hereto, pursuant to which the Novation Agreement was amended and restated.
“First Priority Assets” means the Vessels known on the date the Third Novation Agreement Supplement becomes effective as or that sailed under the name (i) Celebrity Constellation, (ii) Celebrity Equinox, (iii) Celebrity Millennium, (iv) Celebrity Silhouette, (v) Celebrity Summit, (vi) Celebrity Eclipse, (vii) Celebrity Infinity, (viii) Celebrity Reflection and (ix) Celebrity Solstice (it being understood that such Vessels shall remain “First Priority Assets” regardless of any change in name or ownership after such date).
“First Priority Guarantee” means the first priority guarantee granted by the First Priority Guarantor prior to the Effective Time (and any other first priority guarantee granted by a First Priority Holdco Subsidiary in connection with becoming a First Priority Guarantor) in favor of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit G.
“First Priority Guarantor” means Celebrity Cruise Lines Inc. (and any of its successors) and any other First Priority Holdco Subsidiary that has granted or, prior to that entity becoming a First Priority Holdco Subsidiary pursuant to a Disposal of a First Priority Asset in accordance with Section 7.2.5(a)(v)(A), will grant a First Priority Guarantee.
“First Priority Holdco Subsidiaries” means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any First Priority Assets.
“First Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $3,320,000,000):
a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower.

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Notwithstanding the foregoing, a First Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a First Priority Release Event would have occurred but for the continuance of the payment default described above, then a First Priority Release Event will occur immediately upon that payment default being remedied.
“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:
i.    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
ii.    the sum of:
1.    dividends actually paid by the Borrower during such period (including, without limitation, dividends in respect of preferred stock of the Borrower); plus
2.    scheduled payments of principal of all debt less New Financings (determined in accordance with GAAP, but in any event including Capitalized Lease Liabilities) of the Borrower and its Subsidiaries for such period.
“Fixed Rate” means a rate per annum equal to the sum of the CIRR plus the Fixed Rate Margin.
“Fixed Rate Margin” means 0.54% per annum.
“Floating Rate” means a rate per annum equal to the sum of the EURO Rate plus the Floating Rate Margin.
“Floating Rate Margin” means, for each Interest Period 0.69% per annum.
“Fourth Novation Agreement Supplement” means the supplemental agreement dated 12 July 2021 and made between, amongst others, the Original Borrower, the Security Trustee and the parties hereto, pursuant to which the Novation Agreement was amended in connection with the Framework.
“Fourth Supplement Effective Date” has the meaning ascribed to the term “Amendment Effective Date” in the Fourth Novation Agreement Supplement.
“Framework” means the document titled “Debt Deferral Extension Framework” in the form set out in Exhibit L to this Agreement, and which sets out certain key principles and parameters and being applicable to BpiFAE-covered loan agreements such as this Agreement.

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“F.R.S. Board” means the Board of Governors of the Federal Reserve System or any successor thereto.
“French Authorities” means the Direction Générale du Trésor of the French Ministry of Economy and Finance, any successors thereto, or any other governmental authority in or of France involved in the provision, management or regulation of the terms, conditions and issuance of export credits including, among others, such entities to whom authority in respect of the extension or administration of export financing matters have been delegated, such as BpiFAE and Natixis DAI.
“Funding Losses Event” is defined in Section 4.4.1. “GAAP” is defined in Section 1.4.
“Government-related Obligations” means obligations of the Borrower or any Subsidiary of the Borrower under, or Indebtedness incurred by the Borrower or any Subsidiary of the Borrower to satisfy obligations under, any governmental requirement imposed by any Applicable Jurisdiction that must be complied with to enable the Borrower and its Subsidiaries to continue their business in such Applicable Jurisdiction, excluding, in any event, any taxes imposed on the Borrower or any Subsidiary of the Borrower.
“Group” means the Borrower and its Subsidiaries from time to time.
“Group Member” means any entity that is a member of the Group.
“Group Member Guarantee” means any guarantee or other similar or analogous credit support arrangement granted by a Group Member (other than the Borrower) in support of the Indebtedness of another Group Member or any other Person.
“Guarantee” means the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee and (if applicable) any Additional Guarantee and “Guarantees” means any or all of them.
“Guarantee Release Date” means the date upon which the First Priority Release Event, the Second Priority Release Event and the Third Priority Release Event have all occurred and accordingly, subject to Section 7.2.5(g) (and in particular proviso (2) to such Section 7.2.5(g)) each of the Guarantees has been released by the Facility Agent, and also being the date upon which, in accordance with Section 7.3, certain provisions of this Agreement shall be replaced by the provisions set out in Exhibit N, and if such date falls prior to the Novation Effective Time, the Guarantee Release Date shall be deemed to occur at the Novation Effective Time.
“Guarantor” means the provider of any Guarantee from time to time and “Guarantors” means any or all of them.
“Hedging Instruments” means options, caps, floors, collars, swaps, forwards, futures and any other agreements, options or instruments substantially similar thereto or any series or combination thereof used to hedge interest, foreign currency and commodity exposures.
“herein”, “hereof”, “hereto”, “hereunder” and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document.

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“Historic Screen Rate” means, in relation to the Loan, the most applicable recent rate which appeared on Thomson Reuters EURIBOR 01 Page (or any replacement page) for the currency of the Loan and for a period equal to the applicable Interest Period for the Loan and which is no more than 7 days before the commencement of the applicable Interest Period for which such rate may be applicable.
“Illegality Notice” is defined in Section 3.2(b).
“Indebtedness” means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than (i) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 180 days of the date the respective goods are delivered or the respective services are rendered and (ii) any purchase price adjustment, earnout or deferred payment of a similar nature incurred in connection with an acquisition (but only to the extent that no payment has at the time accrued pursuant to such purchase price adjustment, earnout or deferred payment obligation); (c) Indebtedness of others secured by a Lien on the property of such Person, whether or not the respective Indebtedness so secured has been assumed by such Person; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (e) Capital Lease Obligations of such Person; (f) guarantees by such Person of Indebtedness of others, up to the amount of Indebtedness so guaranteed; (g) obligations of such Person in respect of surety bonds and similar obligations; and (h) liabilities arising under Hedging Instruments.
“Indemnified Liabilities” is defined in Section 11.4.
“Indemnified Parties” is defined in Section 11.4.
“Interest Payment Date” means each Repayment Date.
“Interest Period” means the period between the Actual Delivery Date and the first Repayment Date, and subsequently each succeeding period between two consecutive Repayment Dates.
“Interest Stabilisation Agreement” means an agreement on interest stabilisation entered into between Natixis and each Lender (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of any security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1) in connection with the Loan.
“Investment Grade” means, with respect to Moody’s, a Senior Debt Rating of Baa3 or better and, with respect to S&P, a Senior Debt Rating of BBB- or better.
“Last Reported Fiscal Quarter(s)” means the most recently completed Fiscal Quarter(s) for which the Borrower has filed financial statements with the SEC as part of an annual report on Form 10-Q or a quarterly report on Form 10-Q.

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“Lender Assignment Agreement” means any Lender Assignment Agreement substantially in the form of Exhibit C.
“Lender” and “Lenders” are defined in the preamble.
“Lending Office” means, relative to any Lender, the office of such Lender designated as such below its signature hereto or designated in a Lender Assignment Agreement or such other office of a Lender as designated from time to time by notice from such Lender to the Borrower and the Facility Agent, whether or not outside the United States but subject in all cases to the agreement of Natixis DAI in relation to the CIRR, which shall be making or maintaining the Loan of such Lender hereunder.
“Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property to secure payment of a debt or performance of an obligation or other priority or preferential arrangement of any kind or nature whatsoever.
“Lien Basket Amount” is defined in Section 7.2.3(b).
“Loan” means the advances made by the Lenders under this Agreement from time to time or, as the case may be, the aggregate outstanding amount of such advances from time to time.
“Loan Documents” means this Agreement, the Novation Agreement, the First Novation Agreement Supplement, the Second Novation Agreement Supplement, the Third Novation Agreement Supplement, the Fourth Novation Agreement Supplement, the Escrow Agency and Trust Deed, the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee, any Additional Guarantee, the Subordination Agreement, any Additional Subordination Agreement, any New Guarantor Subordination Agreement, the Fee Letters and the Escrow Account Security and any other document designated as a Loan Document by the Borrower and the Facility Agent.
“Loan Request” means the loan request and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit A hereto.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of the Facility Agent or any Lender under the Loan Documents or (c) the ability of the Borrower to perform its payment Obligations under the Loan Documents to which it is a party.
“Material Guarantor” means (i) each of Celebrity Cruise Lines Inc., RCI Holdings LLC, RCL Cruise Holdings LLC and RCL Cruises Ltd (and each of their respective successors) and (ii) any other entity that becomes a First Priority Guarantor, a Second Priority Guarantor or a Third Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement.
“Material Litigation” is defined in Section 6.7.
“Maximum Loan Amount” is defined in the preamble.
“Maximum Non-Yard Costs Amount” is defined in the preamble.
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“Monthly Outflow” means, in respect of each monthly period, the quotient obtained by dividing:
a)    the sum of (i) Total Cruise Operating Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (ii) Marketing, Selling and Administrative Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter and (iii) Interest Expense, net of Interest Capitalized (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter minus (x) Interest Income (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (y) any non-cash charges or impairments included in the calculation of Total Cruise Operating Expenses or Marketing, Selling and Administrative Expenses pursuant to sub-clause (i) or (ii) of this definition and (z) any loss on extinguishment of debt included in Interest Expenses, net of Interest Capitalized (as each such capitalized expression is defined or referenced in the financial statements of the Borrower); by
b)    three,
as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
“Moody’s” means Moody’s Investors Service, Inc.
“Natixis” means Natixis, a French société anonyme with its registered office at 30, avenue Pierre Mendès France, 75013 Paris, France, registered with the Paris Commercial and Companies Registry under number 542 044 524 RCS Paris.
“Natixis DAI” means Natixis DAI Direction des Activités Institutionnelles.
“Net Debt” means, at any time, the aggregate outstanding principal amount of all debt (including, without limitation, the principal portion of all capitalized leases) of the Borrower and its Subsidiaries (determined on a consolidated basis in accordance with GAAP) less the sum of (without duplication);
i.    all cash on hand of the Borrower and its Subsidiaries; plus
ii.    all Cash Equivalents.
“Net Debt to Capitalization Ratio” means, as at any date, the ratio of (a) Net Debt on such date to (b) Capitalization on such date.
“New Capital” means the aggregate gross amount of proceeds from any capital (whether in the form of debt, equity or otherwise) raised by the Borrower or any of its Subsidiaries in one or a series of financings after January 1, 2021 (including (a) amounts borrowed (that were previously undrawn) under committed term loan facilities existing as of such date and (b) Indebtedness borrowed in lieu of the committed term loan facilities described in the foregoing clause (a) if the incurrence of such Indebtedness results in a reduction or termination of such commitments); provided that proceeds of any capital raise which are used substantially concurrently for (i) the purchase price of a new Vessel or (ii) repayment of existing Indebtedness (other than Indebtedness (A) maturing no later than the
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end of the first full calendar year following the date of such repayment or (B) under any revolving credit agreement the repayment of which is not accompanied by a corresponding permanent reduction in the related revolving credit commitments), in each case, shall not constitute New Capital.
“New Financings” means proceeds from:
a)    borrowed money (whether by loan or issuance and sale of debt securities), including drawings under this Agreement and any revolving credit facilities of the Borrower, and
b)    the issuance and sale of equity securities.
“New Guarantor” means, with respect to any Vessel delivered after the effectiveness of the Third Novation Agreement Supplement, the Subsidiary of the Borrower that (a) directly owns the Equity Interests of the Principal Subsidiary that acquired such Vessel and (b) delivers an Additional Guarantee.
“New Guarantor Subordination Agreement” means a subordination agreement pursuant to which the Lenders’ rights under the applicable Additional Guarantee will be fully subordinated in right of payment to the rights of the beneficiaries of the applicable Senior Guarantee, which subordination agreement shall be in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and the agent, trustee or other representative for such Senior Guarantee.
“Nominated Owner” means a Subsidiary of the Borrower to be nominated by the Borrower prior to the Actual Delivery Date to take delivery of the Vessel under the Construction Contract.
“Non-Financed Capex” means, with respect to any period, (a) the aggregate amount of purchases of property (including Vessels) and equipment by the Borrower and its Subsidiaries during such period as determined in good faith by the Borrower minus (b) the aggregate amount of committed financing available to be drawn during such period to fund any such purchases of property and equipment.
“Non-Yard Costs” has the meaning assigned to “NYC Allowance” in paragraph 1.5 of Article II of the Construction Contract and, when such expression is prefaced by the word “incurred”, shall mean such amount of the Non-Yard Costs not exceeding EUR 76,000,000 and, when aggregated with the Other Basic Contract Price Increases, in an amount not exceeding EUR 76,000,000, as shall at the relevant time have been paid, or become payable, to the Builder by the Borrower under the Construction Contract as part of the Contract Price.
“Nordea Agreement” means the U.S. $1,150,000,000 amended and restated credit agreement dated as of October 12, 2017, among the Borrower, as the borrower, the various financial institutions as are or shall become parties thereto and Nordea Bank AB (publ), New York Branch as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Novated Loan Balance” is as defined in the Novation Agreement.
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“Novation Agreement” means the novation agreement dated 24 July 2017 (as amended from time to time, including by the Third Novation Agreement Supplement) and made between the Original Borrower and the parties hereto pursuant to which (amongst other things) this Agreement was novated, amended and restated.
“Novation Effective Time” is as defined in the Novation Agreement.
“NYC Cut Off Date” means the date falling 60 days after the Actual Delivery Date or such later date as the Lenders (with the approval of BpiFAE) may agree.
“Obligations” means all obligations (payment or otherwise) of the Borrower arising under or in connection with this Agreement.
“Obligors” means the Borrower and the Guarantors.
“Option Period” is defined in Section 3.2(c).
“Organic Document” means, relative to the Borrower, its articles of incorporation (inclusive of any articles of amendment to its articles of incorporation) and its by-laws.
“Original Borrower” means Hoediscus Finance Limited of Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008, Cayman Islands.
“Other Basic Contract Price Increases” is defined in the Novation Agreement.
“Other ECA Parties” means the facility agents acting on behalf of the creditors under any ECA Financing, whether existing on or after the effectiveness of the Third Novation Agreement Supplement (excluding the Facility Agent acting in any representative capacity in connection with this Agreement).
“Other Guarantees” means the guarantees issued, or to be issued, by any of the First Priority Guarantor, the Second Priority Guarantors, the Third Priority Guarantor or any New Guarantor in favor of any Other ECA Party; provided that any Other Guarantee issued by (a) the First Priority Guarantor shall be pari passu in right of payment with the First Priority Guarantee, (b) any Second Priority Guarantor shall be pari passu (or junior) in right of payment with the Second Priority Guarantee, (c) the Third Priority Guarantor shall be pari passu (or junior) in right of payment with the Third Priority Guarantee and (d) any New Guarantor shall be pari passu in right of payment with each Additional Guarantee issued by such New Guarantor.
“Other Senior Parties” means each agent, trustee or other representative in respect of Bank Indebtedness or Credit Card Obligations.
“Paid Non-Yard Costs” means as at any relevant date, the amount in Euro of the Non- Yard Costs which have been paid for by the Borrower and, where applicable, supplied, installed and completed on the Purchased Vessel and as determined in accordance with the relevant amounts certified in the Delivery Non-Yard Costs Certificate or, as the case may be, the Final Non-Yard Costs Certificate as at such time.
“Pari Passu Creditor” means with respect to any Group Member, any creditor under or in respect of any Indebtedness incurred by such Group Member (including in respect of any ECA Financing) which is not, as at December 31, 2020, secured by a Lien over a Vessel or
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which, at any time (whether pursuant to the operation of Section 7.1.9(d) or otherwise), shares in the same security and/or guarantee package as the Lenders.
“Participant” is defined in Section 11.11.2.
“Participant Register” is defined in Section 11.11.2.
“Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Percentage” means, relative to any Lender, the percentage set forth opposite its signature hereto or as set out in the applicable Lender Assignment Agreement, as such percentage may be adjusted from time to time pursuant to Section 4.9 or pursuant to Lender Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered pursuant to Section 11.11.1.
“Permitted Refinancing” means, in respect of any Indebtedness or commitments, any amendment, restatement, extension, renewal, refinancing or replacement that does not increase the aggregate principal amount of such Indebtedness or commitments outstanding at the time of such Permitted Refinancing other than by the amount of unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses associated with such amendment, restatement, supplement, refinancing or other modification.
“Person” means any natural person, corporation, limited liability company, partnership, firm, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity.
“Poseidon Principles” means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published in June 2019 as the same may be amended or replaced to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organisation from time to time.
“Prepayment Event” is defined in Section 9.1.
“Principal Subsidiary” means any Subsidiary of the Borrower that owns a Vessel.
“Purchase Price” means, with respect to any Vessel, the book value of such Vessel at the time initially acquired by a Principal Subsidiary.
“Purchased Vessel” is defined in the preamble.
“Receivable Purchase Agreement” is as defined in the Novation Agreement.
“Reference Banks” means Société Générale and SMBC Bank International plc and such other Lender as shall be so named by the Borrower and agrees to serve in such role and each additional Reference Bank and/or each replacement Reference Bank appointed by the Facility Agent pursuant to Section 3.3.6.
“Register” is defined in Section 11.11.3.

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“Repayment Date” means, subject to Section 4.8(c), each of the dates for payment of the repayment installments of the Loan pursuant to Section 3.1.
“Required Lenders” means (a) at any time when SFIL is a Lender, SFIL and at least one other Lender that in the aggregate with SFIL hold more than 50% of the aggregate unpaid principal amount of the Loan or (b) or at any other time, Lenders that in the aggregate hold more than 50% of the aggregate unpaid principal amount of the Loan, and in each case, if no such principal amount is then outstanding, Lenders that in the aggregate have more than 50% of the Commitments.
“Resolution Authority” means any body which has authority to exercise any Write- down and Conversion Powers.
“Restatement Date” means March 12, 2020, being the date on which the form of this Agreement was amended and restated pursuant to the First Novation Agreement Supplement.
“Restricted Credit Enhancement” means any Group Member Guarantee, Lien or other security or other similar or analogous credit support arrangement granted by a Group Member in respect of any Indebtedness of a Group Member.
“Restricted Loan Arrangement” means any loan or credit (including any seller’s credit granted in connection with the sale of a Vessel or other assets (and provided that any such sale complies with the provisions of Section 9.1.11(c))) made available by a Group Member to any Person but excluding any such loan or credit that is provided:
(a)    to another Group Member:
(b)    to a Person in respect of which the Borrower or any Subsidiary holds Equity Interests;
(c)    in circumstances where the relevant credit is a seller’s credit granted by that Group Member in the ordinary course of industry business and consistent with past practice; or
(d)    in circumstances where the relevant credit is otherwise in the ordinary course of business and/or consistent with past practice (it being agreed that any loans provided by the Group to its travel agents, vendors or customers to assist the Group during the crisis and/or recovery will be considered in the ordinary course of business) and where the aggregate amount of such credit referred to in this paragraph (d) does not exceed $100,000,000 (or its equivalent in any other currency) at any relevant time,
provided that no Group Member shall be permitted to make or grant any new loan or other credit (or make any further advances in respect of any existing loan or other credit) of any kind to any Person at any time where an Event of Default or a Prepayment Event has occurred and is continuing. It is agreed that for the purpose of this definition “credit” shall not include any short term trade and/or operational receivables owing to a Group Member by a Person who is not a Group Member and which are created or arise in the ordinary course of business.

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“Restricted Payments” means any dividend or other distribution (whether in cash, securities or other property (other than Equity Interests)), with respect to any Equity Interests in the Borrower, or any share buy-back program or other payment (whether in cash, securities or other property (other than Equity Interests)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrower.
“Restricted Voluntary Prepayment” means, in respect of any Indebtedness for borrowed money of any Group Member (other than any such Indebtedness incurred pursuant to an ECA Financing), the relevant Group Member elects to prepay, repay or redeem that Indebtedness prior to its scheduled maturity date other than:
(a)    any Indebtedness which is scheduled to mature on or prior to the end of the following calendar year (and whether pursuant to an amendment and extension of the agreements evidencing such Indebtedness and/or using proceeds raised by any Group Member in connection with any issuance of capital (whether in the form of Indebtedness for borrowed money, equity or otherwise but, in the case of any Indebtedness, subject to that Indebtedness being incurred in compliance with the carve-out provision set out in paragraph (c) of the definition of Debt Incurrence) or pursuant to the exercise of the equity claw feature in the Secured Note Indenture), provided, however, that the Borrower may, with the prior written consent of BpiFAE, prepay, repay or redeem any notes issued under indentures which are callable in accordance with their terms, including any call date through the use of the equity claw feature;
(b)    pursuant to a voluntary repayment under a revolving credit facility that does not result in the permanent reduction of the relevant revolving credit commitments under that revolving credit facility; and/or
(c)    where such prepayment, repayment or redemption is made solely for the purpose of avoiding an event of default or acceleration under the terms of the facility agreement in respect of the relevant Indebtedness.
“S&P” means Standard & Poor’s Financial Services LLC, a wholly-owned subsidiary of The McGraw-Hill Financial Inc.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions- related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state, or any person owned or controlled by any such Person or Persons, or (b) any Person operating, organized or resident in a Sanctioned Country.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury
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or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom.
“SEC” means the United States Securities and Exchange Commission and any successor thereto.
“Second Novation Agreement Supplement” means the supplemental agreement dated 29 August 2020 and made between, amongst others, the Original Borrower and the parties hereto, pursuant to which the Novation Agreement was supplemented.
“Second Priority Assets” means the Vessels known on the date the Third Novation Agreement Supplement becomes effective as or that sailed under the name (i) Azamara Quest, (ii) Azamara Pursuit, (iii) Azamara Journey, (iv) Celebrity Edge, (v) Celebrity Apex, (vi) Celebrity Flora, (vii) Celebrity Xpedition, (viii) Celebrity Xperience, (ix) Celebrity Xploration, (x) Monarch, (xi) Horizon and (xii) Sovereign (it being understood that such Vessels shall remain “Second Priority Assets” regardless of any change in name or ownership after such date).
“Second Priority Guarantee” means the second priority guarantee granted by the Second Priority Guarantors prior to the Effective Time (and any other second priority guarantee granted by a Second Priority Holdco Subsidiary in connection with becoming a Second Priority Guarantor) in favor of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit H.
“Second Priority Guarantors” means RCL Cruise Holdings LLC, Torcatt Enterprises S.A., RCL Holdings Cooperatief UA, RCL Cruises Ltd and RCL Investments Ltd (and any of their respective successors) and any other Second Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Second Priority Holdco Subsidiary pursuant to a Disposal of a Second Priority Asset in accordance with Section 7.2.5(b)(iii)(A), will grant a Second Priority Guarantee.
“Second Priority Holdco Subsidiaries” means (a) RCL Cruises Ltd. or any other Subsidiaries of the Borrower that directly own all of the equity interests in (i) RCL TUI Cruises German Verwaltungs GmbH and (ii) RCL TUI Cruises German Holding GmbH & Co. KG and (b) one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Second Priority Asset. For the avoidance of doubt, Second Priority Holdco Subsidiaries shall not include any Principal Subsidiary.
“Second Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $3,320,000,000):
a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
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b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Second Priority Guarantors in respect of the Bank Indebtedness.
Notwithstanding the foregoing, a Second Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Second Priority Release Event would have occurred but for the continuance of the payment default described above, then a Second Priority Release Event will occur immediately upon that payment default being remedied.
“Secured Note Indebtedness” means the Borrower’s Indebtedness under the Secured Note Indenture.
“Secured Note Indenture” means that certain Indenture, dated as of May 19, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time) in respect of the $1,000,000,000 10.875% senior secured notes due 2023 and $2,320,000,000 11.50% senior secured notes due 2025, by and among the Borrower, as issuer, the guarantors party thereto from time to time, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee and as security agent.
“Security Trustee” means Citicorp Trustee Company Limited of Citigroup Centre, Canada Square, London E14 5LB in its capacity as security trustee for the purpose of the Escrow Account Security.
“Senior Debt Rating” means, as of any date, (a) the implied senior debt rating of the Borrower for debt pari passu in right of payment and in right of collateral security with the Obligations as given by 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).
“Senior Guarantee” means any guarantee by a New Guarantor of Indebtedness incurred by the Borrower or any of its Subsidiaries after the effectiveness of the Third Novation Agreement Supplement; provided that the aggregate principal amount of Indebtedness guaranteed under any Senior Guarantee shall in no case exceed 10.0% of the Purchase Price of the relevant Vessel owned by the Principal Subsidiary of such New Guarantor that acquired such Vessel.
“Senior Parties” means each agent, trustee or other representative in respect of Unsecured Note Indebtedness or DDTL Indebtedness.
“SFIL” means SFIL, a French société anonyme with is registered office at 1-3 rue du Passeur de Boulogne, 92130 Issy-les-Moulineaux, France, registered at the trade and companies registry of Nanterre under number 428 782 585.

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“Signing Date” means the date of the Novation Agreement.
“Statement of Compliance” means a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.
“Stockholders’ Equity” means, as at any date, the Borrower’s stockholders’ equity on such date, excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP, provided that any non-cash charge to Stockholders’ Equity resulting (directly or indirectly) from a change after the Signing Date in GAAP or in the interpretation thereof shall be disregarded in the computation of Stockholders’ Equity such that the amount of any reduction thereof resulting from such change shall be added back to Stockholders’ Equity.
“Subordination Agreement” means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee executed by the Facility Agent and any of the Senior Parties or Other Senior Parties.
“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.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.
“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in euro.
“Third Novation Agreement Supplement” means the supplemental agreement dated 13 November 2020 and made between, amongst others, the Original Borrower and the parties hereto, pursuant to which the Novation Agreement was supplemented.
“Third Priority Assets” means the Vessels known on the date the Third Novation Agreement Supplement becomes effective as (i) Symphony of the Seas, (ii) Oasis of the Seas, (iii) Harmony of the Seas, (iv) Spectrum of the Seas, (v) Quantum of the Seas, (vi) Ovation of the Seas and (vii) Anthem of the Seas (it being understood that such Vessels shall remain “Third Priority Assets” regardless of any change in name or ownership after the such date).
“Third Priority Guarantee” means the third priority guarantee granted by RCI Holdings LLC prior to the Effective Time (and any other third priority guarantee granted by a Third Priority Holdco Subsidiary in connection with becoming a Third Priority Guarantor) in favor of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit I.
“Third Priority Guarantor” means RCI Holdings LLC (and any of its successors) and any other Third Priority Holdco Subsidiary that has granted or, prior to that entity becoming a
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Third Priority Holdco Subsidiary pursuant to a Disposal of a Third Priority Asset in accordance with Section 7.2.5(c)(iii)(A), will grant a Third Priority Guarantee.
“Third Priority Holdco Subsidiaries” means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Third Priority Asset.
“Third Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Unsecured Note Indebtedness and the DDTL Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being, in aggregate, $1,700,000,000):
a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Third Priority Guarantor in respect of the Unsecured Note Indebtedness, the DDTL Indebtedness and the Bank Indebtedness.
Notwithstanding the foregoing, a Third Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Third Priority Release Event would have occurred but for the continuance of the payment default described above, then a Third Priority Release Event will occur immediately upon that payment default being remedied.
“UK Bail-In Legislation” means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 of Directive 2014/59/EU) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“United States” or “U.S.” means the United States of America, its fifty States and the District of Columbia.
“Unpaid Non-Yard Costs” means, as at the Actual Delivery Date, the amount in Euro of the Non-Yard Costs which have not been paid for by the Borrower and/or where applicable, supplied, installed and completed on the Purchased Vessel as at the Actual Delivery Date and as determined in accordance with the relevant amounts certified in the Delivery Non-Yard Costs Certificate.
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“Unsecured Note Indebtedness” means the Borrower’s Indebtedness under the Unsecured Note Indenture.
“Unsecured Note Indenture” means that certain Indenture, dated as of June 9, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time) in respect of the $1,000,000,000 9.125% senior notes due 2023, by and among the Borrower, as issuer, the guarantor party thereto, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee.
“Vessel” means a passenger cruise vessel owned by a Group Member.
“Write-Down and Conversion Powers” means: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule; and (b) in relation to any UK Bail-In Legislation: (i) any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and (ii) any similar or analogous powers under that UK Bail-In Legislation.
SECTION 1.2.    USE OF DEFINED TERMS. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall, when capitalized, have such meanings when used in the Loan Request and each notice and other communication delivered from time to time in connection with this Agreement or any other Loan Document.
SECTION 1.3.    CROSS-REFERENCES. Unless otherwise specified, references in this Agreement and in each other Loan Document to any Article or Section are references to such Article or Section of this Agreement or such other Loan Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.
SECTION 1.4.    ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless otherwise specified, all accounting terms used herein or in any other Loan Document shall be interpreted, all accounting determinations and computations hereunder or thereunder (including under Section 7.2.4) shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with United States generally accepted accounting principles (“GAAP”) consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies); provided that if the Borrower elects to apply or is required to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP, upon any such election and notice to the Facility Agent, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided further that if, as a result of (i) any change in GAAP or IFRS or in the interpretation thereof or (ii) the application by the Borrower of IFRS in lieu of GAAP, in each case, after the date of the financial statements referred to in Section 6.15, there is a change
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in the manner of determining any of the items referred to herein or thereunder that are to be determined by reference to GAAP, and the effect of such change would (in the reasonable opinion of the Borrower or the Facility Agent) be such as to affect the basis or efficacy of the financial covenants contained in Section 7.2.4 in ascertaining the consolidated financial condition of the Borrower and its Subsidiaries and the Borrower notifies the Facility Agent that the Borrower requests an amendment to any provision hereof to eliminate such change occurring after the date hereof in GAAP or the application thereof on the operation of such provision (or if the Facility Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), then such item shall for the purposes of Section 7.2.4 continue to be determined in accordance with GAAP relating thereto as if GAAP were applied immediately prior to such change in GAAP or in the interpretation thereof until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding the foregoing, all obligations of any person that are or would be characterized as operating lease obligations in accordance with GAAP on the B34 Facility Amendment Date (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations for the purposes of this Agreement regardless of any change in GAAP following the B34 Facility Amendment Date that would otherwise require such obligations to be recharacterized (on a prospective or retroactive basis or otherwise) as capital leases, provided that, for clarification purposes, operating leases recorded as liabilities on the balance sheet due to a change in accounting treatment, or otherwise, shall for all purposes not be treated as Indebtedness, Capital Lease Obligations or Capitalized Lease Liabilities.
ARTICLE II

COMMITMENTS AND BORROWING PROCEDURES
SECTION 2.1.    COMMITMENT. On the terms and subject to the conditions of this Agreement (including Article V), each Lender severally agrees to make its portion of the Loan pursuant to its Commitment described in Section 2.2. No Lender’s obligation to make its portion of the Loan shall be affected by any other Lender’s failure to make its portion of the Loan.
SECTION 2.2.    COMMITMENT OF THE LENDERS; TERMINATION AND REDUCTION OF COMMITMENTS.
i.    Each Lender will make its portion of the Loan available to the Borrower in accordance with Section 2.3 on the Actual Delivery Date. The commitment of each Lender described in this Section 2.2 (herein referred to as its “Commitment”) shall be the commitment of such Lender to make available to the Borrower its portion of the Loan hereunder expressed as the initial amount set forth opposite such Lender’s name on its signature page attached hereto or, in the case of any Lender that becomes a Lender pursuant to an assignment pursuant to Section 11.11.1, the amount set forth as such Lender’s Commitment in the related Lender Assignment Agreement, in each case as such amount may be reduced from time to time pursuant clause 10.2 of the Novation Agreement or reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.11.1. Notwithstanding the foregoing, each Lender’s Commitment shall terminate on the earlier of (i) the Commitment Termination Date if the Purchased Vessel is not delivered prior to such date and (ii) the Actual Delivery Date.
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ii.    If any Lender shall default in its obligations under Section 2.1, the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Lender.
SECTION 2.3.    BORROWING PROCEDURE.
a)    Part of the Loan in an amount equal to the Novated Loan Balance shall be assumed by the Borrower and be deemed to be advanced to, and borrowed by the Borrower, pursuant to the provisions of clause 3 of the Novation Agreement.
b)    In relation to the amount of the Loan comprised by the Additional Advances, the Borrower shall deliver a Loan Request and the documents required to be delivered pursuant to Section 5.1.1(a) to the Facility Agent on or before 3:00 p.m., London time, not less than two (2) Business Days prior to the anticipated Actual Delivery Date. The Additional Advances shall be drawn in Euros.
c)    The Facility Agent shall promptly notify each Lender of the Loan Request in respect of the Additional Advances by forwarding a copy thereof to each Lender, together with its attachments. On the terms and subject to the conditions of this Agreement, the portion of the Loan in respect of the Additional Advances shall be made on the Actual Delivery Date. On or before 11:00 a.m., London time, on the Actual Delivery Date, the Lenders shall, without any set-off or counterclaim, deposit with the Facility Agent same day funds in an amount equal to such Lender’s Percentage of the requested portion of the Additional Advances in Euros. Such deposits will be made to such account which the Facility Agent shall specify from time to time by notice to the Lenders. To the extent funds are so received from the Lenders (and having regard, where applicable, to Sections 2.3d), e) and f) below), the Facility Agent shall, without any set-off or counterclaim, make such funds available to the Borrower on the Actual Delivery Date by wire transfer of same day funds to the accounts the Borrower shall have specified in its Loan Request.
d)    If the Borrower elects to finance that part of the BpiFAE Premium payable by the Borrower with an Additional Advance under clause 5.2(b)(i) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request.
e)    If the Borrower elects to finance that part of the BpiFAE Premium payable by the Borrower with an Additional Advance under clause 5.2(b)(ii) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request.
f)    In relation to any Additional Advance that is to be advanced to the Borrower in respect of the Non-Yard Costs it is agreed that:
i.    an amount equal to eighty per cent (80%) of the Paid Non-Yard Costs shall be advanced to the Borrower on the Actual Delivery Date in accordance with the provisions of Section 2.3 c), which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery Non-Yard Costs Certificate; and
ii.    an amount equal to eighty per cent (80%) of the Unpaid Non-Yard Costs, which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery Non-Yard Costs Certificate (the “Escrow Amount”), shall be remitted by the Facility Agent (and the Borrower hereby instructs the Facility
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Agent to make such remittance) to the Escrow Account and such amount shall be regulated in accordance with the following provisions of this Section 2.3 f) and the Escrow Account Security, subject to the aggregate of the amounts referred to in i) and ii) above not exceeding the Maximum Non-Yard Costs Amount.
Where an Escrow Amount payment is made to the Escrow Account pursuant to ii) above, the Borrower shall be entitled at any time prior to the NYC Cut Off Date to provide the Facility Agent with the Final Non-Yard Cost Certificate setting out the final amount of the Paid Non-Yard Costs. Where the Final Non-Yard Costs Certificate is so received by the Facility Agent, the Facility Agent shall promptly authorize the release of the Escrow Amount (or, if less, an amount equal to eighty per cent of the final amount of the Paid Non-Yard Costs less the amount previously advanced to the Borrower under i) above) to the Borrower. Any interest accruing on the Escrow Account shall be released to the Borrower at the same time as the release of the Escrow Amount (or, if applicable, part thereof) to the Borrower pursuant to this provision.
If any amount of the Escrow Amount remains on the Escrow Account on the day falling immediately after the NYC Cut Off Date (having regard to any applicable permitted release of moneys from the Escrow Account to the Borrower referred to above) then on the Business Day thereafter the Facility Agent shall be entitled to request the withdrawal of that amount from the Escrow Account and shall apply the amount so received, on behalf of the Borrower, in or towards prepayment of the Loan.
The basis on which the Escrow Account Security is held by the Security Trustee for the benefit of the Lenders is regulated under the Escrow Agency and Trust Deed.
SECTION 2.4.    FUNDING. Each Lender may, if it so elects, fulfill its obligation to make or continue its portion of the Loan hereunder by causing a branch or Affiliate (or an international banking facility created by such Lender) other than that indicated next to its signature to this Agreement or, as the case may be, in the relevant Lender Assignment Agreement, to make or maintain such portion of the Loan; provided that such portion of the Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay such portion of the Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility; provided, further, that the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had the Lender not caused such branch or Affiliate (or international banking facility) to make or maintain such portion of the Loan.
ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1.    REPAYMENTS.
a)    The Borrower shall repay the Loan in 24 equal semi-annual installments, with the first installment to fall due on the date falling six (6) months after the Actual Delivery Date and the final installment to fall due on the date of Final Maturity.
b)    No such amounts repaid by the Borrower pursuant to this Section 3.1 may be re- borrowed under the terms of this Agreement.
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SECTION 3.2.    PREPAYMENT.
a)    The Borrower
i.    may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of the Loan; provided that:
1.    all such voluntary prepayments shall require at least five (5) Business Days’ prior written notice to the Facility Agent; and
2.    all such voluntary partial prepayments shall be in an aggregate minimum amount of €10,000,000 and a multiple of €1,000,000 (or in the remaining amount of the Loan) and shall be applied in inverse order of maturity or ratably among all remaining installments, as the Borrower shall designate to the Facility Agent, in satisfaction of the remaining repayment installments of the Loan; and
ii.    shall, immediately upon any acceleration of the repayment of the installments of the Loan pursuant to Section 8.2 or 8.3 or the mandatory prepayment of the Loan pursuant to Section 9.2, repay the Loan.
b)    If it becomes unlawful in any jurisdiction for any Lender to perform any of its obligations under the Loan Documents or to maintain or fund its portion of the Loan, the affected Lender may give written notice (the “Illegality Notice”) to the Borrower and the Facility Agent of such event, including reasonable details of the relevant circumstances.
c)    If an affected Lender delivers an Illegality Notice, the Borrower, the Facility Agent and the affected Lender shall discuss in good faith (but without obligation) what steps may be open to the relevant Lender to mitigate or remove such circumstances but, if they are unable to agree such steps within 20 Business Days or if the Borrower so elects, the Borrower shall have the right, but not the obligation, exercisable at any time within 50 days after receipt of such Illegality Notice or, if earlier, the date upon which the unlawful event referred to in (b) above will apply (but not being a date falling earlier than the end of the 20 Business Day period referred to above) (the “Option Period”), either (1) to prepay the portion of the Loan held by such Lender in full on or before the expiry of the Option Period, together with all unpaid interest and fees thereon accrued to but excluding the date of such prepayment, or (2) to replace such Lender on or before the expiry of the Option Period with one or more financial institutions (I) acceptable to the Facility Agent (such consent not to be unreasonably withheld or delayed) and (II) where relevant, eligible to benefit from an Interest Stabilisation Agreement, pursuant to assignment(s) notified to and consented in writing by BpiFAE and, where relevant Natixis DAI, provided that (x) in the case of a single assignment, any such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or, in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement and (y) no Lender shall be obliged to make any such assignment as a result of an election by the Borrower pursuant to this Section 3.2(c) unless and until such Lender shall have received one or more payments from one or more Assignee Lenders and/or the Borrower in an aggregate amount at least equal to the portion of the Loan held by such Lender, together with all unpaid interest and fees thereon accrued to but excluding the date of such assignment (and all other amounts then owing to such Lender under this Agreement).
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Each prepayment of the Loan made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4. No amounts prepaid by the Borrower may be re-borrowed under the terms of this Agreement.
SECTION 3.3.    INTEREST PROVISIONS. Interest on the outstanding principal amount of the Loan shall accrue and be payable in accordance with this Section 3.3.
SECTION 3.3.1    Rates. The Loan shall accrue interest from the Actual Delivery Date to the date of repayment or prepayment of the Loan in full to the Lenders at either the Fixed Rate or, where the proviso to Section 5.1.10 applies, the Floating Rate. Interest calculated at the Fixed Rate or the Floating Rate shall (having regard in the case of a Defaulting Lender to Section 10.3(b)) be payable in arrears on each Repayment Date. The Loan shall bear interest from and including the first day of the applicable Interest Period to (but not including) the last day of such Interest Period at the interest rate determined as applicable to the Loan. All interest shall be calculated on the basis of the actual number of days elapsed over a year comprised of 360 days.
SECTION 3.3.2    [Intentionally omitted]
SECTION 3.3.3    Interest stabilisation. Each Lender who is a party hereto on the Restatement Date represents and warrants to the Borrower that it has entered into an Interest Stabilisation Agreement and any Lender not a party hereto on the Restatement Date (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1(iv)) represents and warrants to the Borrower on the date that such Lender becomes a party hereto that it has entered into an Interest Stabilisation Agreement on or prior to becoming a party hereto.
SECTION 3.3.4    Post-Maturity Rates. After the date any principal amount of the Loan is due and payable (whether on any Repayment Date, upon acceleration or otherwise), or after any other monetary Obligation of the Borrower shall have become due and payable, the Borrower shall pay, but only to the extent permitted by law, interest (after as well as before judgment) on such amounts for each day during the period of such default at a rate per annum certified by the Facility Agent to the Borrower (which certification shall be conclusive in the absence of manifest error) to be equal to the sum of the Floating Rate plus 1.5% per annum.
SECTION 3.3.5    Payment Dates. Interest accrued on the Loan shall be payable, without duplication, on the earliest of:
1.    each Interest Payment Date;
2.    each Repayment Date;
3.    the date of any prepayment, in whole or in part, of principal outstanding on the Loan (but only on the principal so prepaid); and
4.    on that portion of the Loan the repayment of which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.
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SECTION 3.3.6    Interest Rate Determination; Replacement Reference Banks. Where Section 3.3.4 or the Floating Rate applies, the Facility Agent shall obtain from each Reference Bank timely information for the purpose of determining the EURO Rate in the event that no offered quotation appears on Thomson Reuters EURIBOR 01 Page (or any successor page) and the EURO Rate is to be determined by reference to quotations supplied by the Reference Banks and not by reference to the Historic Screen Rate. If any one or more of the Reference Banks shall fail to furnish in a timely manner such information to the Facility Agent for any such interest rate, the Facility Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Banks. If the Borrower elects to add an additional Reference Bank hereunder or a Reference Bank ceases for any reason to be able and willing to act as such, the Facility Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Bank reasonably acceptable to the Borrower, and such replaced Reference Bank shall cease to be a Reference Bank hereunder. The Facility Agent shall furnish to the Borrower and to the Lenders each determination of the EURO Rate made by reference to quotations of interest rates furnished by Reference Banks (it being understood that the Facility Agent shall not be required to disclose to any party hereto (other than the Borrower) any information regarding any Reference Bank or any rate quoted by a Reference Bank, including, without limitation, whether a Reference Bank has provided a rate or the rate provided by any individual Reference Bank).
Interest accrued on the Loan or other monetary Obligations arising under this Agreement or any other Loan Document after the date such amount is due and payable (whether upon acceleration or otherwise) shall be payable upon demand.
SECTION 3.3.7    Unavailability of the EURO Rate.
Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Facility Agent determines (which determination shall, in the absence of manifest error, be conclusive) or the Borrower or the Required Lenders notify the Facility Agent (with, in the case of the Required Lenders, a copy to Borrower) that the Borrower or the Required Lenders (as applicable) have determined that:
a)    adequate and reasonable means would not exist for ascertaining (should the Floating Rate apply) the EURO Rate for the relevant Interest Period including, without limitation, because the EURO Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
b)    the administrator of the EURO Rate or a governmental authority having jurisdiction over the Facility Agent has made a public statement identifying a specific date after which the EURO Rate shall no longer be made available or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”); or
c)    syndicated loans currently being executed, or existing syndicated loans that include language similar to that contained in this section 3.3.7, are being executed and/or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the EURO Rate,
then, reasonably promptly after such determination by the Facility Agent or receipt by the Facility Agent of such notice, as applicable, or if the Borrower otherwise requests, the Facility Agent and the Borrower may amend this Agreement to replace the EURO Rate with
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an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar EURO denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “EURO Successor Rate”), and also together with any proposed EURO Successor Rate Conforming Changes (as defined below) and any such amendment shall become effective at 5:00 P.M. (London time) on the fifth (5) Business Day after the Facility Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Facility Agent written notice that such Required Lenders do not accept such amendment. Such EURO Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Facility Agent, such EURO Successor Rate shall be applied in a manner as otherwise reasonably determined by the Facility Agent.
If no EURO Successor Rate has been determined and the circumstances under paragraph a) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Facility Agent will promptly notify the Borrower and each Lender.
Thereafter, the obligation of the Lenders to fund or maintain the relevant portion of the Loan at the EURO Rate (to the extent of the affected part of the Loan or Interest Periods) shall be suspended. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of any part of the Loan (to the extent of the affected part of the Loan or Interest Periods).
Notwithstanding anything else herein, any definition of EURO Successor Rate shall provide that in no event shall such EURO Successor Rate be less than zero for purposes of this Agreement.
The Facility Agent (acting on the instructions of the Required Lenders) and the Borrower shall, during the period between 1 April 2021 and 30 June 2022 (or such later date as may be agreed between the Required Lenders and the Borrower), enter into negotiations in good faith with a view to agreeing a basis upon which a EURO Successor Rate can be used in replacement of the EURO Rate, together with any associated EURO Successor Rate Conforming Changes, and a timetable for the implementation of these changes so that the appropriate changes can be made prior to the Scheduled Unavailability Date.
For the purposes of this Agreement, “EURO Successor Rate Conforming Changes” means, with respect to any proposed EURO Successor Rate, any conforming changes to the definition of Floating Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Facility Agent in consultation with the Borrower, to reflect the adoption of such EURO Successor Rate and to permit the administration thereof by the Facility Agent in a manner substantially consistent with market practice (or, if the Facility Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such EURO Successor Rate exists, in such other manner of administration as the Facility Agent determines is reasonably necessary in connection with the administration of this Agreement).
SECTION 3.4.    COMMITMENT FEES. Subject to clause 10.1 of the Novation Agreement, the Borrower agrees to pay to the Facility Agent for the account of each Lender a commitment fee (the “Commitment Fee”) on its daily unused portion of Maximum Loan
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Amount (as such amount may be adjusted from time to time), for the period commencing on the Signing Date and continuing through the earliest to occur (the “Commitment Fee Termination Date”) of (i) the Actual Delivery Date, (ii) the date upon which the Facility Agent has provided the Borrower with written notice that the Lenders will not advance the Loan because the Commitments have been terminated pursuant to Section 8.2 or 8.3, (iii) the Commitment Termination Date and (iv) the date the Commitments shall have been terminated in full pursuant to clause 10.2 of the Novation Agreement.
SECTION 3.4.1    Payment. The Commitment Fee shall be payable by the Borrower to the Facility Agent for the account of each Lender six-monthly in arrears, with the first such payment (the “First Commitment Fee Payment”) to be made on the day falling six months following the Signing Date and the final such payment to be made on the Commitment Fee Termination Date (each date on which a Commitment Fee payment is required to be made in accordance with this Section 3.4.1 referred to herein as a “Commitment Fee Payment Date”). The Commitment Fee shall be in the amount in EUR equal to the product of the Applicable Commitment Rate, multiplied by, for each day elapsed since the preceding Commitment Fee Payment Date (or, in the case of the First Commitment Fee Payment, the Signing Date), 75% of the daily unused portion of Maximum Loan Amount (as such amount may be adjusted from time to time), divided by 360 days.
SECTION 3.4.2    Other Fees. The Borrower agrees to pay to the Facility Agent the agreed-upon fees set forth in the Fee Letters on the dates and in the amounts set forth therein.
ARTICLE IV

CERTAIN EURO RATE AND OTHER PROVISIONS
SECTION 4.1.    EURO RATE LENDING UNLAWFUL. If after the Signing Date the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other governmental authority having jurisdiction over such Lender asserts that it is unlawful for such Lender to make, continue or maintain its portion of the Loan where the relevant Lender has funded itself in the interbank market at a rate based on the EURO Rate, the obligation of such Lender to make, continue or maintain its portion of the Loan shall, upon notice thereof to the Borrower, the Facility Agent and each other Lender, forthwith be suspended until the circumstances causing such suspension no longer exist, provided that such Lender’s obligation to make, continue and maintain its portion of the Loan hereunder shall be automatically converted into an obligation to make, continue and maintain its portion of the Loan bearing interest at a rate to be negotiated between such Lender and the Borrower that is the equivalent of the sum of the EURO Rate for the relevant Interest Period plus the Floating Rate Margin.
SECTION 4.2.    DEPOSITS UNAVAILABLE. If any Lender has funded itself in the interbank market and the Facility Agent shall have determined that:
a)    Euro deposits in the relevant amount and for the relevant Interest Period are not available to each Reference Bank in its relevant market, or

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b)    by reason of circumstances affecting the Reference Banks’ relevant markets, adequate means do not exist for ascertaining the interest rate applicable hereunder to EURO Rate loans for the relevant Interest Period, or
c)    the cost to Lenders that in the aggregate hold more than 50% of the aggregate outstanding principal amount of the Loan then held by Lenders of obtaining matching deposits in the relevant interbank market for the relevant Interest Period would be in excess of the EURO Rate, (provided, that no Lender may exercise its rights under this Section 4.2.c) for amounts up to the difference between such Lender’s cost of obtaining matching deposits on the date such Lender becomes a Lender hereunder less the EURO Rate on such date), then the Facility Agent shall give notice of such determination (hereinafter called a “Determination Notice”) to the Borrower and each of the Lenders. The Borrower, the Lenders and the Facility Agent shall then negotiate in good faith in order to agree upon a mutually satisfactory interest rate and interest period (or interest periods) to be substituted for those which would otherwise have applied under this Agreement. If the Borrower, the Lenders and the Facility Agent are unable to agree upon an interest rate (or rates) and interest period (or interest periods) prior to the date occurring fifteen (15) Business Days after the giving of such Determination Notice, the Facility Agent shall (after consultation with the Lenders) set an interest rate and an interest period (or interest periods), in each case to take effect at the end of the Interest Period current at the date of the Determination Notice, which rate (or rates) shall be equal to the sum of the Floating Rate Margin and the weighted average of the corresponding interest rates at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period on Thomson Reuters’ pages KLIEMMM, GARBIC01 and FINA01 (or such other pages as may replace Thomson Reuters’ pages KLIEMMM, GARBIC01 or FINA01 on Thomson Reuters’ service) (or, in the case of clause (c) above, the lesser of (x) the respective cost to the Lenders of funding the respective portions of the Loan held by the Lenders and (y) such weighted average). The Facility Agent shall furnish a certificate to the Borrower as soon as reasonably practicable after the Facility Agent has given such Determination Notice setting forth such rate(s). In the event that the circumstances described in this Section 4.2 shall extend beyond the end of an interest period agreed or set pursuant hereto, the foregoing procedure shall be repeated as often as may be necessary.
SECTION 4.3.    INCREASED EURO RATE LOAN COSTS, ETC. If after the Signing Date a change in any applicable treaty, law, regulation or regulatory requirement or in the interpretation thereof or in its application to the Borrower, or if compliance by any Lender with any applicable direction, request, requirement or guideline (whether or not having the force of law) of any governmental or other authority including, without limitation, any agency of the European Union or similar monetary or multinational authority insofar as it may be changed or imposed after the date hereof, shall:
i.    subject any Lender to any taxes, levies, duties, charges, fees, deductions or withholdings of any nature with respect to its portion of the Loan or any part thereof imposed, levied, collected, withheld or assessed by any jurisdiction or any political subdivision or taxing authority thereof (other than taxation on overall net income and, to the extent such taxes are described in Section 4.6, withholding taxes); or
ii.    change the basis of taxation to any Lender (other than a change in taxation on the overall net income of any Lender) of payments of principal or interest or any other payment due or to become due pursuant to this Agreement; or
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iii.    impose, modify or deem applicable any reserve or capital adequacy requirements (other than the increased capital costs described in Section 4.5 and the reserve costs described in Section 4.7) or other banking or monetary controls or requirements which affect the manner in which a Lender shall allocate its capital resources to its obligations hereunder or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender (provided that such Lender shall, unless prohibited by law, allocate its capital resources to its obligations hereunder in a manner which is consistent with its present treatment of the allocation of its capital resources); or
iv.    impose on any Lender any other condition affecting its portion of the Loan or any part thereof,
and the result of any of the foregoing is either (i) to increase the cost to such Lender of making its portion of the Loan or maintaining its portion of the Loan or any part thereof, (ii) to reduce the amount of any payment received by such Lender or its effective return hereunder or on its capital or (iii) to cause such Lender to make any payment or to forego any return based on any amount received or receivable by such Lender hereunder, then and in any such case if such increase or reduction in the opinion of such Lender materially affects the interests of such Lender, (A) such Lender shall (through the Facility Agent) notify the Borrower of the occurrence of such event and use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to designate a different Lending Office if the making of such a designation would avoid the effects of such law, regulation or regulatory requirement or any change therein or in the interpretation thereof and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (B) the Borrower shall forthwith upon such demand pay to the Facility Agent for the account of such Lender such amount as is necessary to compensate such Lender for such additional cost or such reduction and ancillary expenses, including taxes, incurred as a result of such adjustment. Such notice shall (i) describe in reasonable detail the event leading to such additional cost, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such additional cost, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such 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. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstance giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such cost or reductions and of such Lender’s intention to claim compensation therefor.
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It is acknowledged that the Borrower shall have no liability to compensate any Lender under this Section for amounts of increased costs that accrue before the Effective Time on the Actual Delivery Date (with any such amounts arising before the Effective Time being the responsibility of the Original Borrower).
SECTION 4.4.    FUNDING LOSSES.
SECTION 4.4.1    Indemnity. In the event any Lender shall incur any loss or expense (for the avoidance of doubt excluding loss of profit) by reason of the liquidation or re-employment (at not less than the market rate) of deposits or other funds acquired by such Lender, to make, continue or maintain any portion of the principal amount of its portion of the Loan as a result of:
i.    any repayment or prepayment or acceleration of the principal amount of such Lender’s portion of the Loan, other than any repayment made on the date scheduled for such repayment or (if the Floating Rate applies) any repayment or prepayment or acceleration on a date other than the scheduled last day of an Interest Period or otherwise scheduled date for repayment or payment; or
ii.    the relevant portion of the Loan not being made in accordance with the Loan Request therefor due to the fault of the Borrower or as a result of any of the conditions precedent set forth in clause 6.1(c) of the Novation Agreement and Article V not being satisfied, (a “Funding Losses Event”) then, upon the written notice of such Lender to the Borrower (with a copy to the Facility Agent), the Borrower shall, within three (3) days of its receipt thereof:
1.    if at that time interest is calculated at the Floating Rate on such Lender’s portion of the Loan, pay directly to the Facility Agent for the account of such Lender an amount equal to the amount by which:
(a)    interest calculated at the Floating Rate (excluding the Floating Rate Margin) which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event for the period from the date of receipt of any part of its share in the Loan to the last day of the applicable Interest Period, exceeds:
(b)    the amount which such Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Interest Period; or
2.    if at that time interest is calculated at the Fixed Rate on such Lender’s portion of the Loan, pay to the Facility Agent the amount notified to it following the calculation referred to in the next paragraph.
Since the Lenders commit themselves irrevocably to the French Authorities in charge of monitoring the CIRR mechanism, any prepayment (whether voluntary, involuntary or mandatory, including following the acceleration of the Loan) will be subject to the mandatory payment by the Borrower of the amount calculated in liaison with the French Authorities two (2) Business Days prior to the prepayment date by taking into account the differential (the
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“Rate Differential”) between the CIRR and the prevailing market yield (currently ISDAFIX) for each installment to be prepaid and applying such Rate Differential to the remaining residual period of such installment and discounting to the net present value as described below. Each of these Rate Differentials will be applied to the corresponding installment to be prepaid during the period starting on the date on which such prepayment is required to be made and ending on the original Repayment Date (as adjusted following any previous prepayments) for such installment and:
(a)    the net present value of each corresponding amount resulting from the above calculation will be determined at the corresponding market yield; and
(b)    if the cumulated amount of such present values is negative, no amount shall be due to the Borrower or from the Borrower.
Such written notice shall include calculations in reasonable detail setting forth the loss or expense to such Lender.
SECTION 4.4.2    Exclusion. In the event that a Lender’s wilful misconduct or gross negligence has caused the loss or cancellation of the BpiFAE Insurance Policy, the Borrower shall not be liable to indemnify that Lender under Section 4.4.1 for its loss or expense arising due to the occurrence of the Prepayment Event referred to in Section 9.1.9.
SECTION 4.5.    INCREASED CAPITAL COSTS. If after the Signing Date any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority increases the amount of capital required to be maintained by any Lender or any Person controlling such Lender, and the rate of return on its or such controlling Person’s capital as a consequence of its Commitment or its portion of the Loan made by such Lender is reduced to a level below that which such Lender or such controlling Person would have achieved but for the occurrence of any such change in circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, the Borrower shall immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. Any such notice shall (i) describe in reasonable detail the capital adequacy requirements which have been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such lowered return, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such 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 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to designate a different Lending Office if the making of such a designation would avoid such reduction in such rate of return and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such
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compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstance giving rise to such reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender’s intention to claim compensation therefor.
It is acknowledged that the Borrower shall have no liability to compensate any Lender under this Section for reduced returns that accrue before the Effective Time on the Actual Delivery Date (with any compensation liability to the Lenders arising before the Effective Time being the responsibility of the Original Borrower).
SECTION 4.6.    TAXES. All payments by an Obligor of principal of, and interest on, the Loan and all other amounts payable under any Loan Document shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes imposed on or measured by any Lender’s net income or receipts of such Lender and franchise taxes imposed in lieu of net income taxes or taxes on receipts, by the jurisdiction under the laws of which such Lender is organized or any political subdivision thereof or the jurisdiction of such Lender’s Lending Office or any political subdivision thereof or any other jurisdiction unless such net income taxes are imposed solely as a result of the applicable Obligor’s activities in such other jurisdiction, and any taxes imposed under FATCA (such non-excluded items being called “Covered Taxes”). In the event that any withholding or deduction from any payment to be made by an Obligor under any Loan Document is required in respect of any Covered Taxes pursuant to any applicable law, rule or regulation, then the Borrower will:
v.    pay directly to the relevant authority the full amount required to be so withheld or deducted;
vi.    promptly forward to the Facility Agent an official receipt or other documentation satisfactory to the Facility Agent evidencing such payment to such authority; and
vii.    pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
Moreover, if any Covered Taxes are directly asserted against the Facility Agent or any Lender with respect to any payment received or paid by the Facility Agent or such Lender hereunder, the Facility Agent or such Lender may pay such Covered Taxes and the Borrower will promptly pay such additional amounts (including any penalties, interest or expenses) as is necessary in order that the net amount received by such person after the payment of such Covered Taxes (including any Covered Taxes on such additional amount) shall equal the amount such person would have received had no such Covered Taxes been asserted.

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Any Lender claiming any additional amounts payable pursuant to this Section agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to change the jurisdiction of its Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
If the Borrower fails to pay any Covered Taxes when due to the appropriate taxing authority or fails to remit to the Facility Agent for the account of the respective Lenders the required receipts or other required documentary evidence, the Borrower shall indemnify the Lenders for any incremental withholding Covered Taxes, interest or penalties that may become payable by any Lender as a result of any such failure (so long as such amount did not become payable as a result of the failure of such Lender to provide timely notice to the Borrower of the assertion of a liability related to the payment of Covered Taxes). For purposes of this Section 4.6, a distribution hereunder by the Facility Agent or any Lender to or for the account of any Lender shall be deemed a payment by the Borrower.
If any Lender is entitled to any refund, credit, deduction or other reduction in tax by reason of any payment made by the Borrower in respect of any Covered Tax under this Section 4.6 or by reason of any payment made by the Borrower pursuant to Section 4.3, such Lender shall use reasonable efforts to obtain such refund, credit, deduction or other reduction and, promptly after receipt thereof, will pay to the Borrower such amount (plus any interest received by such Lender in connection with such refund, credit, deduction or reduction) as is equal to the net after-tax value to such Lender of such part of such refund, credit, deduction or reduction as such Lender reasonably determines is allocable to such Covered Tax or such payment (less out-of-pocket expenses incurred by such Lender), provided that no Lender shall be obligated to disclose to the Borrower any information regarding its tax affairs or tax computations.
Each Lender (and each Participant) agrees with the Borrower and the Facility Agent that it will (i) in the case of a Lender or a Participant organized under the laws of a jurisdiction other than the United States (a) provide to the Facility Agent and the Borrower an appropriately executed copy of Internal Revenue Service Form W-8ECI certifying that any payments made to or for the benefit of such Lender or such Participant are effectively connected with a trade or business in the United States (or alternatively, an Internal Revenue Service Form W-8BEN claiming the benefits of a tax treaty, but only if the applicable treaty described in such form provides for a complete exemption from U.S. federal income tax withholding), or any successor form, on or prior to the date hereof (or, in the case of any Assignee Lender or Participant, on or prior to the date of the relevant assignment or participation), in each case attached to an Internal Revenue Service Form W-8IMY, if appropriate, (b) notify the Facility Agent and the Borrower if the certifications made on any form provided pursuant to this paragraph are no longer accurate and true in all material respects and (c) without prejudice to its obligations under Section 4.13, provide such other tax forms or other documents as shall be prescribed by applicable law, if any, or as otherwise reasonably requested, to demonstrate, to the extent applicable, that payments to such Lender Party (or Participant) hereunder are exempt from withholding under FATCA, and (ii) in all cases, provide such forms, certificates or other documents, as and when reasonably requested by the Borrower, necessary to claim any applicable exemption from, or reduction of, Covered Taxes or any payments made to or for benefit of such Lender Party or such Participant, provided that the Lender Party or Participant is legally able to deliver such forms, certificates or other documents. For any period with
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respect to which a Lender (or Assignee Lender or Participant) has failed to provide the Borrower with the foregoing forms (other than if such failure is due to a change in law occurring after the date on which a form originally was required to be provided (which, in the case of an Assignee Lender, would be the date on which the original assignor was required to provide such form) or if such form otherwise is not required hereunder) such Lender (or Assignee Lender or Participant) shall not be entitled to the benefits of this Section 4.6 with respect to Covered Taxes imposed by reason of such failure.
All fees and expenses payable pursuant to Section 11.3 shall be paid together with value added tax or any similar tax (if any) properly chargeable thereon. Any value added tax chargeable in respect of any services supplied by a Lender or an Agent under this Agreement shall, on delivery of the value added tax invoice, be paid in addition to any sum agreed to be paid hereunder.
SECTION 4.7.    RESERVE COSTS. Without in any way limiting the Borrower’s obligations under Section 4.3, the Borrower shall, with effect from the Effective Time, pay to the Facility Agent for the account of each Lender on the last day of each Interest Period, so long as the relevant Lending Office of such Lender is required to maintain reserves against “Eurocurrency liabilities” under Regulation D of the F.R.S. Board, upon notice from such Lender, an additional amount equal to the product of the following for the Loan for each day during such Interest Period:
a)    the principal amount of the Loan outstanding on such day; and
b)    the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on the Loan for such Interest Period as provided in this Agreement (less, if applicable, the Floating Rate Margin) and the denominator of which is one minus any increase after the Signing Date in the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender minus (y) such numerator; and
c)    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 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to avoid the requirement of maintaining such reserves (including by designating a different Lending Office) if such efforts would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 4.8.    PAYMENTS, COMPUTATIONS, ETC.
a)    Unless otherwise expressly provided, all payments by an Obligor pursuant to any Loan Document shall be made by such Obligor to the Facility Agent for the
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pro rata account of the Lenders entitled to receive such payment. All such payments required to be made to the Facility Agent shall be made, without set-off, deduction or counterclaim, not later than 11:00 a.m., London time, on the date due, in same day or immediately available funds through TARGET2 (or such other funds as may be customary for the settlement of international banking transactions in Euros), to such account as the Facility Agent shall specify from time to time by notice to the Borrower. Funds received after that time shall be deemed to have been received by the Lenders on the next succeeding Business Day.
b)    Each Lender hereby instructs the Facility Agent, with respect to any portion of the Loan held by such Lender, to pay directly to such Lender interest thereon at the Fixed Rate or (if the proviso to Section 5.1.10 applies) the Floating Rate, on the basis that (if the Fixed Rate applies) such Lender will, where amounts are payable to Natixis by that Lender under the Interest Stabilisation Agreement, account directly to Natixis for any such amounts payable by that Lender under the Interest Stabilisation Agreement to which such Lender is a party.
c)    The Facility Agent shall promptly (but in any event on the same Business Day that the same are received or, as contemplated in clause (a) of this Section, deemed received) remit in same day funds to each Lender its share, if any, of such payments received by the Facility Agent for the account of such Lender without any set-off, deduction or counterclaim. All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days. Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing interest and fees, if any, in connection with such payment.
SECTION 4.9.    REPLACEMENT LENDERS, ETC. If the Borrower shall be required to make any payment to any Lender pursuant to Section 4.2(c), 4.3, 4.4, 4.5, 4.6 or 4.7, the Borrower shall be entitled at any time (so long as no Default and no Prepayment Event shall have occurred and be continuing) within 180 days after receipt of notice from such Lender of such required payment to (a) terminate such Lender’s Commitment (where upon the Percentage of each other Lender shall automatically be adjusted to an amount equal to such Lender’s ratable share of the remaining Commitments), (b) prepay the affected portion of such Lender’s Loan in full, together with accrued interest thereon through the date of such prepayment (provided that the Borrower shall not terminate any Lender’s Commitment pursuant to clause (a) or prepay any such Lender pursuant to this clause (b) without replacing such Lender pursuant to the following clause (c) until a 30-day period shall have elapsed during which the Borrower and the Facility Agent shall have attempted in good faith to replace such Lender), and/or (c) replace such Lender with another financial institution reasonably acceptable to the Facility Agent and (if the Fixed Rate applies) Natixis DAI, provided that (i) each such transfer shall be either a transfer of all of the rights and obligations of the transferring Lender under this Agreement or a transfer of a portion of such rights and obligations made concurrently with another such transfer or other such transfers that together cover all of the rights and obligations of the transferring Lender under this Agreement and (ii) no Lender shall be obligated to make any such transfer as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from either the Borrower or one or more Assignee Lenders in an aggregate amount at least equal to the aggregate outstanding principal amount of the Loan owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts
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payable to such Lender under this Agreement. Each Lender represents and warrants to the Borrower that, as of the Signing Date (or, with respect to any Lender not a party hereto on the Signing Date, on the date that such Lender becomes a party hereto), there is no existing treaty, law, regulation, regulatory requirement, interpretation, directive, guideline, decision or request pursuant to which such Lender would be entitled to request any payments under any of Sections 4.3, 4.4, 4.5, 4.6 and 4.7 to or for account of such Lender.
SECTION 4.10.    SHARING OF PAYMENTS.
SECTION 4.10.1    Payments to Lenders. If a Lender (a “Recovering Lender”) receives or recovers any amount from an Obligor other than in accordance with Section 4.8 (Payments, Computations, etc.) (a “Recovered Amount”) and applies that amount to a payment due under the Loan Documents then:
a)    the Recovering Lender shall, within three (3) Business Days, notify details of the receipt or recovery to the Facility Agent;
b)    the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Lender would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with the said Section 4.8, without taking account of any taxes which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
c)    the Recovering Lender shall, within three (3) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Lender as its share of any payment to be made, in accordance with any applicable provisions of this Agreement.
SECTION 4.10.2    Redistribution of payments. The Facility Agent shall treat the Sharing Payment as if it had been paid by the Borrower and distribute it between the Lenders (other than the Recovering Lender) (the “Sharing Lenders”) in accordance with the provisions of this Agreement towards the obligations of the Borrower to the Sharing Lenders.
SECTION 4.10.3    Recovering Lender’s rights. On a distribution by the Facility Agent under Section 4.10.2 of a payment received by a Recovering Lender from the relevant Obligor, as between that Obligor and the Recovering Lender, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by the relevant Obligor.
SECTION 4.10.4    Reversal of redistribution If any part of the Sharing Payment received or recovered by a Recovering Lender becomes repayable and is repaid by that Recovering Lender, then:
a)    each Sharing Lender shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Lender an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Sharing Payment which that Recovering Lender is required to pay) (the “Redistributed Amount”); and

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b)    as between the relevant Obligor and each relevant Sharing Lender, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by the relevant Obligor.
SECTION 4.10.5    Exceptions.
a)    This Section 4.10 shall not apply to the extent that the Recovering Lender would not, after making any payment pursuant to this Section 4.10, have a valid and enforceable claim against the relevant Obligor.
b)    A Recovering Lender is not obliged to share with any other Lender any amount which the Recovering Lender has received or recovered as a result of taking legal or arbitration proceedings, if:
i.    it notified the other Lender of the legal or arbitration proceedings; and
ii.    the other Lender had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
SECTION 4.11.    SET-OFF. Upon the occurrence and during the continuance of an Event of Default or a Prepayment Event, each Lender shall have, to the extent permitted by applicable law, the right to appropriate and apply to the payment of the Obligations then due and owing to it any and all balances, credits, deposits, accounts or moneys of any Obligor 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 applicable Obligor and the Facility Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of set-off under applicable law or otherwise) which such Lender may have.
SECTION 4.12.    USE OF PROCEEDS. The Borrower shall apply the proceeds of the Loan made available to the Borrower in respect of the Additional Advances for the purpose of making payments of, or reimbursing the Borrower for payments already made for, the amounts referred to in clauses 5.2, 5.3 and/or 5.4 of the Novation Agreement and, without limiting the foregoing, no proceeds of the Loan will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or any “margin stock”, as defined in F.R.S. Board Regulation U.
SECTION 4.13.    FATCA INFORMATION.
a)    Subject to paragraph c) below, each party (other than the Borrower) shall, within ten Business Days of a reasonable request by another party (other than the Borrower):
i.    confirm to that other party whether it is:
1.    a FATCA Exempt Party; or
2.    not a FATCA Exempt Party;
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ii.    supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other party’s compliance with FATCA;
iii.    supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other party’s compliance with any other law, regulation, or exchange of information regime.
b)    If a party confirms to another party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.
c)    Paragraph a) above shall not oblige any Lender or the Facility Agent to do anything, and paragraph a)(iii) above shall not oblige any other party to do anything, which would or might in its reasonable opinion constitute a breach of:
i.    any law or regulation;
ii.    any fiduciary duty; or
iii.    any duty of confidentiality.
d)    If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such party shall be treated for the purposes of the Loan Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.
e)    Each party may make a FATCA Deduction from a payment under this Agreement that it is required to be made by FATCA, and any payment required in connection with that FATCA Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
SECTION 4.14.    RESIGNATION OF THE FACILITY AGENT. The Facility Agent shall resign (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent) if, either:
a)    the Facility Agent fails to respond to a request under Section 4.13 and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
b)    the information supplied by the Facility Agent pursuant to Section 4.13 indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party; or
c)    the Facility Agent notifies the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;

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and (in each case) a Lender reasonably believes that a party to this Agreement will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and that Lender, by notice to the Facility Agent, requires it to resign.
ARTICLE V

CONDITIONS TO BORROWING
SECTION 5.1.    ADVANCE OF THE LOAN. The obligation of the Lenders to fund the relevant portion of the Loan to be made available on the Actual Delivery Date shall be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in this Section 5.1. The Facility Agent shall advise the Lenders of the satisfaction of the conditions precedent set forth in this Section 5.1 prior to funding on the Actual Delivery Date.
SECTION 5.1.1    Resolutions, etc. The Facility Agent shall have received from the Borrower:
a)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorized to act with respect to this Agreement and each other Loan Document and as to the truth and completeness of the attached:
(x)    resolutions of its Board of Directors then in full force and effect authorizing the execution, delivery and performance of this Agreement and each other Loan Document, and
(y)    Organic Documents of the Borrower,
and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the Borrower canceling or amending such prior certificate; and
b)    a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the Borrower.
SECTION 5.1.2    Opinions of Counsel. The Facility Agent shall have received opinions, addressed to the Facility Agent, the Security Trustee (in relation to a) and b) below) and each Lender from:
i.    Watson Farley & Williams LLP, counsel to the Borrower, as to Liberian Law, covering the matters set forth in Exhibit B-1 hereto (and which shall be updated to include reference to the Escrow Account Security);
ii.    Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders, covering the matters set forth in Exhibit B-2 hereto (and which shall be updated to include reference to the Escrow Account Security) and, if the BpiFAE Insurance Policy is to be re-issued or replaced on or about the Actual Delivery Date, Exhibit B-3 hereto; and
iii.    Clifford Chance US LLP, United States tax counsel to the Facility Agent for the benefit of the Lenders, covering the matters set forth in Exhibit B-4 hereto, each such opinion to be updated to take into account all relevant and applicable Loan Documents at the time of issue thereof.
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SECTION 5.1.3    BpiFAE Insurance Policy. The Facility Agent or the ECA Agent shall have received the BpiFAE Insurance Policy duly issued and BpiFAE shall not have, prior to the advance of the Loan, delivered to the Facility Agent or the ECA Agent any notice seeking the cancellation, suspension or termination of the BpiFAE Insurance Policy or the suspension of the drawing of the Additional Advances under this Agreement.
SECTION 5.1.4    Closing Fees, Expenses, etc. The Facility Agent shall have received for its own account, or for the account of each Lender or BpiFAE, as the case may be, all fees that the Borrower shall have agreed in writing to pay to the Facility Agent (whether for its own account or for the account of any of the Lenders) that are due and owing as of the date of such funding and all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent and the BpiFAE Premium) required to be paid by the Borrower pursuant to Section 11.3 or that the Borrower has otherwise agreed in writing to pay to the Facility Agent, in each case on or prior to the date of such funding.
SECTION 5.1.5    Compliance with Warranties, No Default, etc. Both before and after giving effect to the funding of the Loan the following statements shall be true and correct:
a)    the representations and warranties set forth in Article VI (excluding, however, those set forth in Section 6.10) shall be true and correct in all material respects except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, with the same effect as if then made; and
b)    no Default and no Prepayment Event and no event which (with notice or lapse of time or both) would become a Prepayment Event shall have then occurred and be continuing.
SECTION 5.1.6    Loan Request. The Facility Agent shall have received a Loan Request duly executed by the Borrower together with:
a)    where an Additional Advance is requested in respect of the Non-Yard Costs, the Delivery Non-Yard Costs Certificate;
b)    certified as true (by the Builder) copies of the invoice and supporting documents received by the Builder from the Borrower pursuant to Appendix C of the Construction Contract in relation to the Paid Non-Yard Costs to be financed as at the time of issue and a declaration from the Borrower in substantially the form set forth in Exhibit D hereto that the requirements for a minimum 15% French content in respect of Non-Yard Costs have been fulfilled;
c)    a copy of the final commercial invoice from the Builder showing the amount of the Contract Price (including the Non-Yard Costs and the Other Basic Contract Price Increases) and the portion thereof payable to the Builder on the Actual Delivery Date under the Construction Contract; and
d)    copies of the wire transfers for all payments by the Borrower to the Builder under the Construction Contract in respect of the Basic Contract Price to the extent not already provided as part of the drawdown conditions for drawdowns made by the Original Borrower.
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SECTION 5.1.7    [Intentionally omitted].
SECTION 5.1.8    Protocol of delivery. The Facility Agent shall have received a copy of the protocol of delivery and acceptance under the Construction Contract duly signed by the Builder and the Borrower or the Nominated Owner to be notified to the Facility Agent.
SECTION 5.1.9    Title to Purchased Vessel. The Facility Agent shall have received evidence that the Purchased Vessel is legally and beneficially owned by the Borrower or the Nominated Owner (as the case may be), free of all recorded Liens, other than Liens permitted by Section 7.2.3 and, to the extent not yet discharged, the Mortgage (as defined in the Novation Agreement).
SECTION 5.1.10    Interest Stabilisation. The ECA Agent shall have received a duly executed fixed rate approval from Natixis DAI issued to the Lenders in respect of the CIRR applicable to the Loan and shall have been informed by the French Authorities of the conditions of the interest make-up mechanisms (stabilisation du taux d’intérêt) applicable to the Loan under the applicable Interest Stabilisation Agreement in respect of the Lenders, such conditions to specify, among other things, that the CIRR has been retained under the interest make-up mechanisms applicable to the Loan.
In relation to Section 5.1.10, if a Lender (an “Ineligible Lender”) becomes ineligible or otherwise ceases to be a party to an Interest Stabilisation Agreement, it shall promptly upon becoming aware thereof (and by no later than 15 Business Days before the anticipated Actual Delivery Date) notify the Borrower, the ECA Agent and the Facility Agent.
Following receipt of such a notice, the ECA Agent (through the Facility Agent) shall give to the Borrower at least 10 Business Days’ prior notice stating if the condition precedent in Section 5.1.10 will not be satisfied due to the Ineligible Lender but would be satisfied by the replacement of the Ineligible Lender as set out below, with such replacement to take effect for the purpose of this Section on the Actual Delivery Date.
On its receipt of such notice from the ECA Agent, the Borrower shall be entitled, at any time thereafter and without prejudice to any rights and remedies it may have against such Ineligible Lender pursuant to Section 3.3.3, to replace such Ineligible Lender with another bank or financial institution reasonably acceptable to the Facility Agent, BpiFAE and Natixis DAI with effect from the Actual Delivery Date, provided that (i) each such transfer shall be either a transfer of all of the rights and obligations of the Ineligible Lender under this Agreement or a transfer of a portion of such rights and obligations made concurrently with another such transfer or other such transfers that together cover all of the rights and obligations of the Ineligible Lender under this Agreement and (ii) no Lender shall be obligated to make effective any such transfer as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from one or more Assignee Lenders in an aggregate amount equal to the aggregate outstanding principal amount of the portion of the Novated Loan Balance which, immediately following the Effective Time, would have been owing to such Lender pursuant to Section 2.3(a) had that Lender not been replaced prior to the Effective Time. The ECA Agent and the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Ineligible Lender, and taking such other steps that may be reasonably required and which are within the control of the ECA Agent and the Facility
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Agent to assist with the satisfaction of the condition precedent in Section 5.1.10 prior to funding on the Actual Delivery Date.
Provided however the Borrower shall be entitled, without prejudice to its rights and remedies pursuant to Section 3.3.3, to elect that if at the Actual Delivery Date the condition precedent in Section 5.1.10 is not satisfied the Floating Rate should apply to the Loan, such election to be made by notice in writing to the Facility Agent not less than five (5) Business Days prior to the anticipated Actual Delivery Date in which event, subject to the approval of BpiFAE, the Loan shall bear interest at the Floating Rate and the condition set out in Section 5.1.10 shall be deemed waived by the Lenders.
The ECA Agent (through the Facility Agent) shall, promptly after the Borrower’s request, advise the Borrower whether it is aware (based solely on information obtained from Natixis DAI and other French Authorities and/or received from the Lenders at the time of any such request and without any liability on the ECA Agent for the accuracy of that information) that the condition precedent in Section 5.1.10 will not or may not be satisfied as required by Section 5.1.10. Escrow Account Security. The Facility Agent shall have received the Escrow Account Security duly executed by the Borrower together with a duly executed notice of charge and acknowledgement thereto executed by the Borrower and the Escrow Account Bank respectively.
ARTICLE VI

REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Facility Agent to enter into this Agreement and to make the Loan hereunder, the Borrower represents and warrants to the Facility Agent and each Lender as set forth in this Article VI as of the Actual Delivery Date and on the Guarantee Release Date (in each case except as otherwise stated).
SECTION 6.1.    ORGANIZATION, ETC. The Borrower is a corporation validly organized and existing and in good standing under the laws of its jurisdiction of incorporation; the Borrower is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the nature of its business requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect; and the Borrower has full power and authority, has taken all corporate action and holds all governmental and creditors’ licenses, permits, consents and other approvals necessary to enter into each Loan Document to which it is a party 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:
1.    contravene the Borrower’s Organic Documents;
2.    contravene any law or governmental regulation of any Applicable Jurisdiction except as would not reasonably be expected to result in a Material Adverse Effect;
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3.    contravene any court decree or order binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect;
4.    contravene any contractual restriction binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect; or
5.    result in, or require the creation or imposition of, any Lien on any of the Borrower’s properties except as would not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.3.    GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or other Person is required for the due execution, delivery or performance by the Borrower of this Agreement or any other Loan Document (except for authorizations or approvals not required to be obtained on or prior to the Actual Delivery Date or that have been obtained or actions not required to be taken on or prior to the Actual Delivery Date or that have been taken). The Borrower holds all governmental licenses, permits and other approvals required to conduct its business as conducted by it on the Actual Delivery Date, except to the extent the failure to hold any such licenses, permits or other approvals would not have a Material Adverse Effect.
SECTION 6.4.    COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower is in compliance with all applicable Environmental Laws, except to the extent that the failure to so comply would not have a Material Adverse Effect.
SECTION 6.5.    VALIDITY, ETC. This Agreement constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles.
SECTION 6.6.    NO DEFAULT, EVENT OF DEFAULT OR PREPAYMENT EVENT. No Default, Event of Default or Prepayment Event has occurred and is continuing.
SECTION 6.7.    LITIGATION. There is no action, suit, litigation, investigation or proceeding pending or, to the knowledge of the Borrower, threatened against the Borrower, that (i) except as set forth in filings made by the Borrower with the SEC in the Borrower’s reasonable opinion might reasonably be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries (taken as a whole) (collectively, “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation of the transactions contemplated hereby.
SECTION 6.8.    THE PURCHASED VESSEL. Immediately following the delivery of the Purchased Vessel to the Borrower under the Construction Contract, the Purchased Vessel will be:
a)    legally and beneficially owned by the Borrower or one of the Borrower’s wholly owned Subsidiaries,
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b)    registered in the name of the Borrower or one of the Borrower’s wholly owned Subsidiaries under the Bahamian or Maltese flag or such other flag as the parties may mutually agree,
c)    classed as required by Section 7.1.4(b),
d)    free of all recorded Liens, other than Liens permitted by Section 7.2.3,
e)    insured against loss or damage in compliance with Section 7.1.5, and
f)    exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries.
SECTION 6.9.    OBLIGATIONS RANK PARI PASSU; LIENS.
a)    The Obligations rank at least pari passu in right of payment and in all other respects with all other unsecured unsubordinated Indebtedness of the Borrower other than Indebtedness preferred as a matter of law.
b)    As at the date of this Agreement, the provisions of this Agreement which permit or restrict the granting of Liens are no less favorable than the provisions permitting or restricting the granting of Liens in any other agreement entered into by the Borrower with any other person providing financing or credit to the Borrower.
SECTION 6.10.    WITHHOLDING, ETC. . As of the Signing Date, no payment to be made by the Borrower under any Loan Document is subject to any withholding or like tax imposed by any Applicable Jurisdiction.
SECTION 6.11.    NO FILING, ETC. REQUIRED. No filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of any Applicable Jurisdiction to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Agreement or the other Loan Documents (except for filings, recordings, registrations or payments not required to be made on or prior to the Actual Delivery Date or that have been made).
SECTION 6.12.    NO IMMUNITY. The Borrower is subject to civil and commercial law with respect to the Obligations. Neither the Borrower nor any of its properties or revenues is entitled to any right of immunity in any Applicable Jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to the Obligations (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted or exist).
SECTION 6.13.    INVESTMENT COMPANY ACT. The Borrower is not required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
SECTION 6.14.    REGULATION U. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of the Loan will be used for a purpose which violates, or would be inconsistent with, F.R.S. Board Regulation U. Terms for which meanings are provided in F.R.S. Board Regulation U or any
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regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
SECTION 6.15.    ACCURACY OF INFORMATION. The financial and other information (other than financial projections or other forward looking information) furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Borrower, true and correct and contains no misstatement of a fact of a material nature. All financial projections, if any, that have been furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with this Agreement have been or will be prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the projections will be realized). All financial and other information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Borrower in good faith.
SECTION 6.16.    COMPLIANCE WITH LAWS. The Borrower is in compliance with all applicable laws, rules, regulations and orders, except to the extent that the failure to so comply does not and could not reasonably be expected to have a Material Adverse Effect, and the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The Borrower and its Subsidiaries and, to the knowledge of the Borrower, their respective officers, employees, directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions, in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in Borrower being designated as a Sanctioned Person. None of (a) the Borrower, any Subsidiary or to the knowledge of the Borrower or such Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.
ARTICLE VII

COVENANTS
SECTION 7.1.    AFFIRMATIVE COVENANTS. The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date (or, where applicable, from such time as may be stated in any applicable provision below) until all Commitments have terminated and all Obligations have been paid in full, the Borrower will perform the obligations set forth in this Section 7.1.
SECTION 7.1.1    Financial Information, Reports, Notices etc. The Borrower will furnish, or will cause to be furnished, to the Facility Agent (with sufficient copies for distribution to each Lender) the following financial statements, reports, notices and information:
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a)    as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, a copy of the Borrower’s report on Form 10-Q (or any successor form) as filed by the Borrower with the SEC for such Fiscal Quarter, containing unaudited consolidated financial statements of the Borrower for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
b)    as soon as available and in any event within 120 days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s annual report on Form 10-K (or any successor form) as filed by the Borrower with the SEC for such Fiscal Year, containing audited consolidated financial statements of the Borrower for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLP or another firm of independent public accountants of similar standing;
c)    together with each of the statements delivered pursuant to the foregoing clause (a) or (b), a certificate, executed by the chief financial officer, the treasurer or the corporate controller of the Borrower, showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year compliance with the covenants set forth in Section 7.2.4 (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
d)    as soon as possible after the occurrence of a Default or Prepayment Event, a statement of the chief financial officer of the Borrower setting forth details of such Default or Prepayment Event (as the case may be) and the action which the Borrower has taken and proposes to take with respect thereto;
e)    as soon as the Borrower becomes aware thereof, notice of any Material Litigation except to the extent that such Material Litigation is disclosed by the Borrower in filings with the SEC;
f)    as soon as the Borrower becomes aware thereof, notice of any event which, in its reasonable opinion, would be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole;
g)    promptly after the sending or filing thereof, copies of all reports which the Borrower sends to all holders of each security issued by the Borrower, and all registration statements which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange;
h)    such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Facility Agent may from time to time reasonably request (including an update to any information and projections previously provided to the Lenders where these have been prepared and are available);
i)    during the Financial Covenant Waiver Period, as soon as available and in any event within respectively five (5) Business Days, ten (10) and forty (40) days (or such other period as BpiFAE may require from time to time) after the end of each monthly, bi-monthly and quarterly period (save that the period in respect of the final quarter of each Fiscal Year shall be sixty (60) days) from the Fourth Supplement Effective Date, the information
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required by the Debt Deferral Extension Regular Monitoring Requirements (as such information requirements may be amended on the basis set out in the Debt Deferral Extension Regular Monitoring Requirements) (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
j)    during the Financial Covenant Waiver Period, upon the request of the Facility Agent (acting on the instructions of BpiFAE), the Borrower and the Lenders shall provide information in form and substance satisfactory to BpiFAE regarding arrangements in respect of Indebtedness for borrowed money of the Group then existing or any such Indebtedness to be incurred by or made available to (as the case may be) the Group pursuant to binding commitments (such information to be provided to BpiFAE in accordance with terms of the Facility Agent’s request);
k)    during the period from the Novation Effective Time until the Covenant Modification Date, within five Business Days after the end of each month falling during such period, 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 immediately preceding month, compliance with the covenant set forth in Section 7.2.4(C); provided that if, during such period, the Borrower is not in compliance with the covenant set forth in Section 7.2.4(C) as of the last day of such month, the Borrower shall show compliance with such covenant as of the date such certificate is delivered;
l)    within 15 Business Days of the end of each month throughout the Early Warning Monitoring Period, 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 month (i) the ratio of Adjusted Cash Balance as of the last day of the most recently completed month to the Monthly Outflow for the month most recently ended (and showing whether the Adjusted Cash Balance covers the Monthly Outflow for at least the subsequent five-month period), (ii) the Borrower’s Adjusted EBITDA After Principal and Interest for the two consecutive Last Reported Fiscal Quarters and (iii) in the case of the next certificate to be submitted immediately following the Borrower’s publishing of results for each Last Reported Fiscal Quarter, a comparison of Adjusted EBITDA After Principal and Interest with the figure from the corresponding Fiscal Quarter in the 2019 Fiscal Year (in each case in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
m)    on one occasion during each calendar year from the start of the Financial Covenant Waiver Period, the environmental plan of the Borrower (and including the Group’s carbon emissions for the past two years (calculated according to methodologies defined by the IMO or any other public methodology specified by the Borrower) as required to be published pursuant to each letter of the Borrower issued pursuant to the Fourth Novation Agreement Supplement;
n)    if the Borrower intends to make a Restricted Voluntary Prepayment, not less than ten Business Days prior to the anticipated making of a Restricted Voluntary Prepayment, the Borrower shall provide written notice to the Facility Agent of that Restricted Voluntary Prepayment (which notice shall set out in reasonable detail the terms of that Restricted Voluntary Prepayment); and

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o)    during the Financial Covenant Waiver Period, as soon as the Borrower becomes aware thereof, notice (with a copy to the ECA Agent and BpiFAE) of any matter that has, or may, result in a breach of section 7.1.10,
provided that information required to be furnished to the Facility Agent under subsections (a), (b), (g) and (m) of this Section 7.1.1 shall be deemed furnished to the Facility Agent when available free of charge on the Borrower’s website at http://www.rclinvestor.com or the SEC’s website at http://www.sec.gov.
SECTION 7.1.2    Approvals and Other Consents. The Borrower will obtain (or cause to be obtained) all such governmental licenses, authorizations, consents, permits and approvals as may be required for (a) each Obligor to perform its obligations under the Loan Documents to which it is a party and (b) the operation of the Purchased Vessel in compliance with all applicable laws, except, in each case, to the extent that failure to obtain (or cause to be obtained) such governmental licenses, authorizations, consents, permits and approvals would not be expected to have a Material Adverse Effect.
SECTION 7.1.3    Compliance with Laws, etc. The Borrower will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, except (other than as described in clauses (a) and (f) below) to the extent that the failure to so comply would not have a Material Adverse Effect, which compliance shall in any case include (but not be limited to):
a)    in the case of the Borrower, the maintenance and preservation of its corporate existence (subject to the provisions of Section 7.2.6);
b)    in the case of the Borrower, maintenance of its qualification as a foreign corporation in the State of Florida;
c)    the payment, before the same become delinquent, of all taxes, assessments and governmental charges imposed upon it or upon its property, except to the extent being diligently contested in good faith by appropriate proceedings;
d)    compliance with all applicable Environmental Laws;
e)    compliance with all anti-money laundering and anti-corrupt practices laws applicable to the Borrower, including by not making or causing to be made any offer, gift or payment, consideration or benefit of any kind to anyone, either directly or indirectly, as an inducement or reward for the performance of any of the transactions contemplated by this agreement to the extent the same would be in contravention of such applicable laws; and
f)    the Borrower will maintain in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
SECTION 7.1.4    The Purchased Vessel. The Borrower will:
a)    cause the Purchased Vessel to be exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries, provided that the Borrower or such Subsidiary may charter out the Purchased Vessel (i) to entities other than the
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Borrower and the Borrower’s wholly owned Subsidiaries and (ii) on a time charter with a stated duration not in excess of one year;
b)    cause the Purchased Vessel to be kept in such condition as will entitle her to classification by a classification society of recognized standing;
c)    provide the following to the Facility Agent with respect to the Purchased Vessel:
i.    evidence as to the ownership of the Purchased Vessel by the Borrower or one of the Borrower’s wholly owned Subsidiaries; and
ii.    evidence of no recorded Liens on the Purchased Vessel, other than Liens permitted pursuant to Section 7.2.3;
d)    within seven days after the Actual Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
i.    evidence of the class of the Purchased Vessel; and
ii.    evidence as to all required insurance being in effect with respect to the Purchased Vessel; and
e)    on or before the later of (i) 31 July and (ii) 30 days after its own receipt of a Statement of Compliance in each calendar year, supply, or procure the supply, to the Facility Agent (for distribution to BpiFAE and the Lenders) (in each case at the cost of the Borrower) of all information necessary in order for any Lender to comply with its obligations under the Poseidon Principles in respect of the preceding year, including, without limitation, all ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI (as collated and reported to the Purchased Vessel’s flag state using the verification report submitted to that flag state) and any Statement of Compliance, in each case relating to the Purchased Vessel for the preceding calendar year, provided always that such information shall be confidential information for the purposes of Section 11.15 and, accordingly, no Lender shall publicly disclose such information with the identity of the Purchased Vessel or the Borrower (or, if applicable, the Borrower’s wholly owned Subsidiary that then owns the Purchased Vessel) without the prior written consent of the Borrower (it being expressly agreed however that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the relevant Lender’s portfolio climate alignment).
SECTION 7.1.5    Insurance. The Borrower will maintain or cause to be maintained with responsible insurance companies insurance with respect to the Purchased Vessel against such casualties, third-party liabilities and contingencies and in such amounts, in each case, as is customary for other businesses of similar size in the passenger cruise line industry (provided that in no event will the Borrower or any Subsidiary be required to obtain any business interruption, loss of hire or delay in delivery insurance) and will, upon request of the Facility Agent, furnish to the Facility Agent (with sufficient copies for distribution to each Lender) at reasonable intervals a certificate of a senior officer of the Borrower setting forth the nature and extent of all insurance maintained by the Borrower and certifying as to compliance with this Section.

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SECTION 7.1.6    Books and Records. The Borrower will keep books and records that accurately reflect all of its business affairs and transactions and permit the Facility Agent and each Lender or any of their respective representatives, at reasonable times and intervals and upon reasonable prior notice, to visit each of its offices, to discuss its financial matters with its officers and to examine any of its books or other corporate records.
SECTION 7.1.7    BpiFAE Insurance Policy/French Authority Requirements. The Borrower shall, on the reasonable request of the ECA Agent or the Facility Agent, provide such other information as required under the BpiFAE Insurance Policy and/or the Interest Stabilisation Agreement as necessary to enable the ECA Agent or the Facility Agent to obtain the full support of the relevant French Authority pursuant to the BpiFAE Insurance Policy and/or the Interest Stabilisation Agreement (as the case may be). The Borrower must pay to the ECA Agent or the Facility Agent the amount of all reasonable costs and expenses reasonably incurred by the ECA Agent or the Facility Agent in connection with complying with a request by any French Authority for any additional information necessary or desirable in connection with the BpiFAE Insurance Policy or the Interest Stabilisation Agreement (as the case may be); provided that the Borrower is consulted before the ECA Agent or Natixis incurs any such cost or expense.
SECTION 7.1.8    Further Assurances in respect of the Framework. The Borrower will from time to time throughout the Financial Covenant Waiver Period, and at the request of the Facility Agent, promptly enter into good faith negotiations in respect of (a) amending this Agreement to remove the carve-out of Section 7.2.4 set out in Section 9.1.4 and/or (b) amending the financial covenants set forth in this Agreement, resetting the testing of such financial covenants and/or supplementing those financial covenants with additional financial covenants. A failure to reach an agreement under this paragraph following such good faith negotiations shall not constitute an Event of Default or a Prepayment Event.
SECTION 7.1.9    Equal Treatment with Pari Passu Creditors. The Borrower undertakes with the Facility Agent that it shall ensure (and shall procure that each other Group Member shall ensure) that the Lenders are treated equally in all respects with all other Pari Passu Creditors, and accordingly:
a)    the Borrower shall, to the extent not already entered into as at the Fourth Supplement Effective Date, enter into similar covenant amendment and replacement and mandatory prepayment arrangements to those contemplated by the Fourth Novation Agreement Supplement in respect of each ECA Financing (and for this purpose excluding any ECA Financings where the lenders under that ECA Financing do not provide their consent to such arrangements in circumstances where the arrangements contemplated in respect of that ECA Financing are on substantially the same basis as set out in this Agreement (as amended by the Fourth Novation Agreement Supplement) but including any financing which will, upon novation of the relevant facility agreement to the Borrower, become an ECA Financing) as soon as reasonably practicable after the Fourth Supplement Effective Date (with such amendments being on terms which shall not prejudice the rights of BpiFAE under this Agreement);
b)    the Borrower shall promptly upon written request, supply the Facility Agent and the ECA Agent with information (in a form and substance satisfactory to the Facility Agent and ECA Agent) regarding the status of the amendments to be entered into in accordance with paragraph (a) above;
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c)    to enable the Borrower to comply with the requirements under paragraph (d) below, prior to any Group Member entering into any Restricted Credit Enhancement with a Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.9(a)(ii)), the Borrower shall promptly notify the Facility Agent (and such notification shall include details of the new Lien or Group Member Guarantee and shall otherwise be in form and substance reasonably satisfactory to the Facility Agent); and
d)     at the same time as any relevant Restricted Credit Enhancement is provided to the relevant Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.9(a)(ii)), the Borrower, any relevant Group Member and the Lenders shall enter into such documentation as may be necessary in the reasonable opinion of the Facility Agent to ensure that the Lenders benefit from that Restricted Credit Enhancement on the same terms as the relevant Pari Passu Creditor(s) and, where that Restricted Credit Enhancement is a Lien or a Group Member Guarantee, to share in that Lien or Group Member Guarantee on a pari passu basis (and the Lenders agree to enter into such intercreditor documentation to reflect such pari passu ranking (in a form and substance satisfactory to the Lenders (acting reasonably)) as may be required in connection with such arrangements).
SECTION 7.1.10    Performance of shipbuilding contract obligations. During the Financial Covenant Waiver Period, the Borrower shall (and shall procure that each of its Subsidiaries shall) comply with its contractual commitments under and in respect of (i) each shipbuilding contract in existence as at the Fourth Supplement Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into with the Builder and (ii) any option agreements or similar binding contractual commitments (whether in respect of a firm order of a vessel or otherwise) in existence at the Fourth Supplement Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into by the Borrower (or any of its Subsidiaries) and the Builder in connection with the potential entry into of a shipbuilding contract at a future point in time (it being agreed that such obligation shall not require the Borrower or the relevant Subsidiary (as applicable) to exercise any option or other contractual right thereunder), save that this Section 7.1.10 shall be subject to any amendment to any such shipbuilding contract, option agreement, contract or other related document if such amendment has, in consultation with the ECA Agent (acting on the instructions of BpiFAE), been agreed between the Borrower or, as the case may be, relevant Subsidiary and the Builder.
SECTION 7.2.    NEGATIVE COVENANTS. The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date until all Commitments have terminated and all Obligations have been paid and performed in full, the Borrower will perform the obligations set forth in this Section 7.2.
SECTION 7.2.1    Business Activities. The Borrower will not, and will not permit any of its Subsidiaries to, engage in any principal business activity other than those engaged in by the Borrower and its Subsidiaries on the date hereof and other business activities reasonably related, ancillary or complimentary thereto or that are reasonable extensions thereof.
SECTION 7.2.2    Indebtedness. Until the occurrence of the Guarantee Release Date (whereupon Section 7.2.2 of Exhibit N shall apply in accordance with Section 7.3), the Borrower will not permit any of the Existing Principal Subsidiaries to create, incur,
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assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, other than, without duplication, the following:
a)    Indebtedness secured by Liens of the type described in Section 7.2.3;
b)    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower;
c)    Indebtedness incurred to finance, refinance or refund the cost (including the cost of construction) of assets acquired after the Effective Date;
d)    Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted to be secured under Section 7.2.3(b), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
e)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; and
f)    Indebtedness of Silversea Cruise Holding Ltd. and its Subsidiaries (“Silversea”) identified in Section 1 of Exhibit F hereto.
SECTION 7.2.3    Liens. Until the occurrence of the Guarantee Release Date (whereupon Section 7.2.2 of Exhibit N shall apply in accordance with Section 7.3), the Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired, except:
a)    Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Borrower after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Vessel, owns a Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
b)    in addition to other Liens permitted under this Section 7.2.3, Liens securing Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted under Section 7.2.2(d), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10% of the total assets of the Borrower and its Subsidiaries (the “Lien Basket Amount”) taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; provided, however that, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody’s and S&P, the Lien Basket Amount shall be the greater of (x) 5.0% of the total
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assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter and (y) $735,000,000;
c)    Liens on assets acquired after the Effective Date by the Borrower or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Borrower or any of its Subsidiaries in anticipation thereof;
d)    Liens on any asset of any corporation that becomes a Subsidiary of the Borrower (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Borrower is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation becomes a Subsidiary of the Borrower and were not created by the Borrower or any of its Subsidiaries in anticipation thereof;
e)    Liens securing Government-related Obligations;
f)    Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;
g)    Liens of carriers, warehousemen, mechanics, material-men and landlords incurred in the ordinary course of business for sums not overdue by more than 60 days or being diligently contested in good faith by appropriate proceedings;
h)    Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
i)    Liens for current crew’s wages and salvage;
j)    Liens arising by operation of law as the result of the furnishing of necessaries for any Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings;
k)    Liens on Vessels that:
i.    secure obligations covered (or reasonably expected to be covered) by insurance;
ii.    were incurred in the course of or incidental to trading such Vessel in connection with repairs or other work to such Vessel; or
iii.    were incurred in connection with work to such Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;
provided that, in each case described in this clause (k), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;

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l)    normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers’ liens, rights of set-off or similar rights in favor of banks or other depository institutions;
m)    Liens in respect of rights of set-off, recoupment and holdback in favor of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business;
n)    Liens on cash or Cash Equivalents or marketable securities securing obligations in respect of Hedging Instruments not incurred for speculative purposes or securing letters of credit that support such obligations;
o)    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
p)    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
q)    licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
r)    Liens on any property of Silversea identified in Section 2 of Exhibit F hereto,
provided, however that from the Fourth Supplement Effective Date until the Guarantee Release Date, no Group Member shall be entitled to grant any Lien of the type referred to in paragraphs (a) to (d) above over any ECA Financed Vessel.
SECTION 7.2.4    Financial Condition. The Borrower will not permit:
a)    Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1.
b)    Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter.
In addition, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody’s and S&P, the Borrower will not permit Stockholders’ Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single accounting period, but in any event excluding any Fiscal Quarters for which the Borrower and its Subsidiaries have a consolidated net loss).
SECTION 7.2.4(A). Most favored lender with respect to Financial Covenants. During the Financial Covenant Waiver Period, if any Group Member agrees,
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in respect of any of its Indebtedness for borrowed money, to any new, modified or substitute financial covenants of the type, or similar to, the financial covenants set out in Section 7.2.4 above then (i) the Borrower shall notify the Facility Agent in writing within 5 Business Days of such new, modified or substitute financial covenants being agreed with the relevant creditor(s) and (ii) if required by the Lenders, the Borrower and the Lenders shall, as soon as practicable thereafter, enter into an amendment to this Agreement to incorporate the new, modified or substitute financial covenants.
SECTION 7.2.4(B). Notification of change to financial covenants.    (i) If at any time during the Financial Covenant Waiver Period, other than as notified in writing by the Borrower to the Facility Agent prior to the date of the Fourth Novation Agreement Supplement, the last day of a financial covenant waiver period under any of the agreements in respect of any of the Borrower’s other Indebtedness shall be amended such that it falls prior to September 30, 2022, the Borrower shall notify the Facility Agent and that revised date, save as provided below, shall be the last date of the Financial Covenant Waiver Period for the purposes of this Agreement.
(ii)    If, other than as notified in writing by the Borrower to the Facility Agent prior to the date of the Fourth Novation Agreement Supplement, following receipt of the notice referred to in sub-paragraph (i) above, the relevant date referred to above is then extended, the Borrower shall be entitled to notify the Facility Agent of the same and, upon receipt of that notice, such revised date or, if earlier, September 30, 2022, shall then become the final date of the Financial Covenant Waiver Period for the purposes of this Agreement.
SECTION 7.2.4(C). Minimum liquidity.     The Borrower will not allow the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP to be less than the Adjustable Amount as of (i) the last day of any calendar month from the Fourth Supplement Effective Date until the Covenant Modification Date, or (ii) if the Borrower is not in compliance with the requirements of this Section 7.2.4(C) as of the last day of any calendar month during the Financial Covenant Waiver Period (or, if earlier, prior to the Covenant Modification Date), the date the certificate required by Section 7.1.1(k) with respect to such month is delivered to the Facility Agent (it being understood that the Borrower shall not be required to comply with this Section 7.2.4(C) at any time on or after the Covenant Modification Date).
SECTION 7.2.5    Additional Undertakings. From the effectiveness of the Third Novation Agreement Supplement, and notwithstanding anything to the contrary set out in this Agreement or any other Loan Document:
a)    First Priority Guarantee Matters. Until the occurrence of a First Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the First Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the First Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
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(iii)    the First Priority Guarantor will not incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with any Other Guarantees;
(iv)    neither Celebrity Cruises Holdings Inc. nor Celebrity Cruises Inc will incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with the Secured Note Indebtedness or any Permitted Refinancing thereof; and
(v)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any First Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any First Priority Assets, other than
(A)    to any other entity that is a First Priority Guarantor;
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of First Priority Assets made after the effectiveness of the Third Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(2)    $250,000,000 plus
(3)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) First Priority Assets or other assets owned by another First Priority Guarantor immediately prior to acquisition) acquired by any First Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement; or
(C)    if the net proceeds therefrom are applied in accordance with Section 4.09(b)(i) or 4.09(b)(iii) of the Secured Note Indenture, to the extent applicable at such time; provided, however, that if, within 450 days of such Disposition, any net proceeds of such Disposition have not been utilized in accordance with such provisions and are retained by the Borrower or any Subsidiary after such application (such retained net proceeds, “Excess Proceeds”), then:
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(1)    if not already held by a First Priority Guarantor, such Excess Proceeds shall be promptly transferred to a First Priority Guarantor to be (x) retained in an account and on the balance sheet of that First Priority Guarantor and (y) used solely (i) for capital expenditures for the benefit of the remaining First Priority Assets or for the purposes of any asset purchase by that First Priority Guarantor or (ii) to make an offer to each ECA Guarantor in accordance with the following sub-clause (2); or
(2)    where the Borrower has elected to utilize the Excess Proceeds in the manner referred to in (ii) above, the Borrower shall make a written offer contemporaneously to each ECA Guarantor to apply such Excess Proceeds as a pro rata prepayment of the Loan and the Indebtedness under each other ECA Financing that is pari passu in right of payment to the Obligations. If any ECA Guarantor provides written notice to the Borrower within 90 days of such offer accepting such offer, the Borrower shall prepay the relevant Indebtedness notified to it within 10 Business Days (or such longer period as may be agreed with the lenders under each relevant ECA Financing being prepaid) of the date of receipt of such notice. If any ECA Guarantor fails to accept such offer within the said 90 days referred to above, then the pro rata portion of such Excess Proceeds that would have been applied to prepay the ECA Financings with respect to such ECA Guarantor if such offer was accepted shall be retained and applied in accordance with the foregoing sub-clause (1)(i).
b)    Second Priority Guarantee Matters. Until the occurrence of a Second Priority Release Event:
(i)    the Borrower will not, and will not permit any of its Subsidiaries to, form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Second Priority Guarantor
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(and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    no Second Priority Guarantor will form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any Second Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Second Priority Assets, other than:
(A)    to any other entity that is a Second Priority Guarantor; or
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Second Priority Assets made after the effectiveness of the Third Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A)) is less than the sum of:
(1)    $250,000,000 plus
(2)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Second Priority Assets or other assets owned by another Second Priority Guarantor immediately prior to acquisition) acquired by any Second Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement.
c)    Third Priority Guarantee Matters. Until the occurrence of a Third Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the Third Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the Third Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any Third Priority Assets or any Equity
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Interests in a Subsidiary that owns, directly or indirectly, any Third Priority Assets, other than:
(A)    to any other entity that is a Third Priority Guarantor;
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Third Priority Assets made after the effectiveness of the Third Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(1)    $250,000,000 plus
(2)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Third Priority Assets or other assets owned by another Third Priority Guarantor immediately prior to acquisition) acquired by any Third Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement; or
(C)    if the net proceeds therefrom are applied in accordance with those provisions of the Unsecured Note Indenture and/or the definitive documentation governing the DDTL Indebtedness to the extent applicable at the time which allow the Borrower to make an offer to prepay and/or repay the debt evidenced by the Unsecured Note Indenture and/or DDTL Indebtedness, as applicable; provided that, if any such net proceeds are retained by the Borrower or any Subsidiary after such application, the Borrower shall promptly repay or redeem all or any portion of any Indebtedness that is pari passu or senior in right of payment to the Obligations and for which a Third Priority Guarantor is a guarantor, in each case, subject to the terms of the documentation governing such Indebtedness (including the DDTL Indebtedness, the Unsecured Note Indebtedness, any Bank Indebtedness, any Credit Card Obligations, the Loan and any other Indebtedness under an ECA Financing); provided, further, that any repayment of Indebtedness under any revolving credit
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agreement pursuant to this paragraph shall be accompanied by a corresponding permanent reduction in the related revolving credit commitments.
d)    New Guarantor Matters. In the event the Borrower or any of its Subsidiaries acquires an ECA Financed Vessel:
(i)    the Borrower will cause the applicable New Guarantor to provide:
(A)    on or before the later of (1) 15 Business Days of the purchase of the relevant ECA Financed Vessel and (2) the Effective Time, (A) an Additional Guarantee, together with each equivalent Other Guarantee required to be provided under the terms of the other ECA Financings (as amended from time to time) and (B) all documents and information required by the Lenders in order to satisfy any applicable “know your customer” checks and any other reasonable condition precedent requirements of the Lenders (excluding, for the avoidance of doubt, legal opinions); provided that, in each case, if such New Guarantor is party to a Senior Guarantee at such time, the Facility Agent shall have contemporaneously entered into a New Guarantor Subordination Agreement; and
(ii)    until the occurrence of a Second Priority Release Event and a Third Priority Release Event:
(A)    the Borrower will not permit the applicable New Guarantor to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness) other than the applicable Additional Guarantee, any Other Guarantee and any Senior Guarantee;
(B)    the Borrower will not permit the Principal Subsidiary that acquires the relevant ECA Financed Vessel to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness);
(C)    notwithstanding any other provision of this Agreement, the Borrower will not, and shall procure that no other Subsidiary shall Dispose (whether to a Group Member or otherwise) of the relevant ECA Financed Vessel (or any equity interests in a Subsidiary that owns, directly or
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indirectly, such ECA Financed Vessel); provided that (1) such ECA Financed Vessel may be exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries and (2) the Borrower or such Subsidiary may charter out such ECA Financed Vessel (x) to entities other than the Borrower and the Borrower’s wholly owned Subsidiaries and (y) on a time charter with a stated duration not in excess of one year; and
(D)    notwithstanding the provisions of Sections 7.2.2 and 7.2.3, the Borrower will not, and will not permit any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon the relevant ECA Financed Vessel, other than Liens permitted under Section 7.2.3 that do not secure Indebtedness for borrowed money.
e)    Further Assurances. At the Borrower’s reasonable request, the Facility Agent shall execute (i) any Additional Subordination Agreement or any Subordination Agreement, in substantially the form attached hereto as Exhibit J or Exhibit K with such changes, or otherwise in form and substance, reasonably satisfactory to the Facility Agent (acting upon the instructions of the Required Lenders and BpiFAE), to ensure the required priority of the Second Priority Guarantee and the Third Priority Guarantee and (ii) any New Guarantor Subordination Agreement contemporaneously with the execution of any Senior Guarantee by a New Guarantor if such New Guarantor has granted an Additional Guarantee at such time.
f)    Amount of Indebtedness. The Borrower shall ensure that:
(i)    the maximum aggregate principal amount of Bank Indebtedness (or any Permitted Refinancing thereof) guaranteed by the Second Priority Guarantors shall not exceed, in the aggregate, $5,300,000,000 (or its equivalent in any other currency) until the occurrence of a First Priority Release Event, a Second Priority Release Event, and a Third Priority Release Event;
(ii)    the maximum aggregate principal amount of Unsecured Note Indebtedness and DDTL Indebtedness (or any Permitted Refinancing of either of them), in each case, guaranteed by the Third Priority Guarantor shall not exceed, in the aggregate, $1,700,000,000 (or its equivalent in any other currency) until the occurrence of a Third Priority Release Event;
(iii)    until the occurrence of a Second Priority Release Event, none of the Second Priority Guarantors will grant any guarantee that is pari passu with or senior to its obligations under the Second Priority Guarantee, except in connection with (A) any Bank Indebtedness or any Permitted Refinancing thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that
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currently provided by that Second Priority Guarantor in connection with the relevant Indebtedness; and
(iv)    until the occurrence of a Third Priority Release Event, the Third Priority Guarantor will not grant any guarantee that is pari passu with or senior to its obligations under the Third Priority Guarantee, except in connection with (A) any Bank Indebtedness, Unsecured Note Indebtedness, DDTL Indebtedness or any Permitted Refinancing of any thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that currently provided by the Third Priority Guarantor in connection with the relevant Indebtedness.
g)    Release of Guarantees. The Borrower agrees to give the Facility Agent written notice of the occurrence of any First Priority Release Event, Second Priority Release Event or Third Priority Release Event. The Facility Agent agrees, subject to the proviso (2) below, that:
(i)    the First Priority Guarantee shall be automatically released upon the occurrence of a First Priority Release Event;
(ii)    the Second Priority Guarantee shall be automatically released upon the occurrence of a Second Priority Release Event;
(iii)    the Third Priority Guarantee shall be automatically released upon the occurrence of a Third Priority Release Event; and
(iv)    each Additional Guarantee shall be automatically released upon the occurrence of both a Second Priority Release Event and a Third Priority Release Event,
provided (1) in each case, and subject to the proviso (2) below, that upon the Borrower’s request, the Facility Agent shall promptly confirm in writing the release of the applicable Guarantee following the occurrence of the relevant release event and (2) where the Borrower is of the opinion that it would, if the Guarantee Release Date was to occur, be in breach of the provisions of Section 7.2.2 as set out in Exhibit N (and which would otherwise come into effect on that Guarantee Release Date) on the Guarantee Release Date, the Borrower shall be entitled, by serving written notice on the Facility Agent, to request that the Guarantee Release Date be postponed until such time as the Borrower is satisfied that it will be able to comply with the provisions of the said Section 7.2.2. Where the Borrower issues a notice pursuant to this proviso (2) it agrees that it shall use all reasonable endeavors and take all appropriate action as may be practicable at such time to enable it to comply with the said Section 7.2.2 as soon as practicable following the date that the Guarantee Release Date would have occurred but for this proviso (2) so that the Guarantee Release Date can then occur and, as soon as it is satisfied that it will be able to comply with the said Section 7.2.2 it will promptly serve a further written notice on the  Facility Agent. Upon receipt of this further notice, the provisions of this paragraph (g) shall once again apply and the Facility Agent shall then take the action required of it to enable the Guarantee Release Date to occur.
SECTION 7.2.6    Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation, except:
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ii.    any such Subsidiary may (i) liquidate or dissolve voluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 7.2.7; and
iii.    so long as no Event of Default has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
1.    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
2.    in the case of a merger involving the Borrower where the Borrower is not the surviving corporation, (and without prejudice to the provisions of Sections 3.2b) and c) and 9.1.10, which shall not restrict the proposed merger but which can still apply to the extent that the proposed merger would give rise to any of the events or circumstances contemplated by such Sections):
a.    the surviving corporation shall have assumed in writing, delivered to the Facility Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents; and
b.    the surviving corporation shall, promptly upon the request of the Facility Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Facility Agent or any Lender in order for the Facility Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations.
SECTION 7.2.7    Asset Dispositions, etc. Subject to Section 7.2.5, the Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or substantially all of the assets of (a) the Borrower or (b) the Subsidiaries of the Borrower, taken as a whole, except sales of assets between or among the Borrower and Subsidiaries of the Borrower.
SECTION 7.2.8    Borrower’s Procurement Undertaking. Where any of the covenants set out in this Agreement require performance by any Subsidiary of the Borrower, the Borrower shall procure the performance of that obligation by such Subsidiary.
SECTION 7.2.9    Framework Lien and Guarantee Restriction. From the Fourth Supplement Effective Date until the Guarantee Release Date, and without prejudice to Section 7.2.3, the Borrower shall not (and shall procure that each other Group Member shall not, save in respect of a Restricted Credit Enhancement of the type referred to in Section 7.1.9(d) (and in respect of which the Lenders therefore receive the benefit)):

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a)    grant any Restricted Credit Enhancement in respect of any Indebtedness for borrowed money, provided that:
(i)     subject to the limitations set out in paragraph (b) below, this paragraph (a) shall not prohibit any Group Member from providing any Lien or Group Member Guarantee in connection with Indebtedness incurred after the Fourth Supplement Effective Date (provided that such Lien and/or Group Member Guarantee is issued at the same time, and in connection with, the initial incurrence of that Indebtedness (and is therefore not by way of additional credit support));
(ii)    in connection with a Permitted Refinancing of any Indebtedness, the relevant Group Member shall be entitled to provide the creditors under that Permitted Refinancing with Liens and/or Group Member Guarantees (as applicable) which:
(A)    in the case where the existing Indebtedness being refinanced was previously supported by Liens, the Liens and/or the Group Member Guarantees securing or supporting the Permitted Refinancing (as applicable) are over some or all of the same assets and
(1)    with respect to any Liens, are with the same or lower priority as the Liens in respect of such assets that secured the Indebtedness being refinanced; and    
(2)     with respect to any Group Member Guarantees, are Group Member Guarantees provided by a Group Member that owns (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that were previously secured pursuant to the Liens referred to in the first sentence of this paragraph (A); and
(B)    in the case where the existing Indebtedness being refinanced was previously supported by any Group Member Guarantee, the Group Member Guarantee(s) supporting such Permitted Refinancing are:
(1)    guarantees of obligations in an amount no greater than the guarantees granted in connection with the original Indebtedness being refinanced;
(2)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing is the same entity providing the Group Member Guarantees that are being replaced, provided by entities owning (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that it owned when the previous Group Member Guarantee was provided;

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(3)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing differs from the entity providing the Group Member Guarantees being replaced, provided by entities that directly or indirectly own Vessels with an aggregate book value no greater than the Vessels that were owned (directly or indirectly) by the previous provider of the relevant Group Member Guarantee(s) that supported the existing Indebtedness; and
(4)    the same or lower priority as the original Group Member Guarantee(s) and are issued by either the same entities or from shareholders of those entities,
provided that this paragraph (a) shall not prohibit any Group Member from providing or maintaining any Lien in accordance with the provisions of Section 7.2.3(d) through to (q) inclusive, provided, however, that the proviso at the end of Section 7.2.3(d) shall apply with respect to Liens granted pursuant to that provision; and
b)    incur any new Indebtedness (including Indebtedness of the type referred to in paragraph (a)(i) above but excluding any Permitted Refinancing Indebtedness in connection with paragraph (a)(ii) above) which is secured by a Lien or is supported by a Group Member Guarantee and which, when taken with all other Indebtedness incurred by the Group since the Fourth Supplement Effective Date and which is also secured by a Lien or supported by a Group Member Guarantee, is greater than $1,300,000,000 (but deducting from this amount for this purpose, (i) the amount of any additional Indebtedness incurred by the Borrower in connection with the drawing of the DDTL Indebtedness (whether pursuant to the accordion option or otherwise) or (ii) any Indebtedness borrowed in lieu of the drawing of the DDTL Indebtedness in the foregoing clause) or its equivalent in any other currency, and provided that no Group Member shall, as contemplated by the proviso to Section 7.2.3, from the Fourth Supplement Effective Date until the Guarantee Release Date (whereupon the relevant provisions of Exhibit N shall apply) be permitted to grant any Lien over an ECA Financed Vessel as security for any Indebtedness permitted to be incurred under this Agreement after the Fourth Supplement Effective Date.
SECTION 7.3.    COVENANT REPLACEMENT.
With effect on and from the Guarantee Release Date, it is agreed that Sections 7.2.2 and 7.2.3 shall be deleted in their entirety and replaced with the covenants and other provisions set out in Exhibit N, which shall become part of this Agreement and effective and binding on all Parties.
SECTION 7.4.    LENDER INCORPORATED IN THE FEDERAL REPUBLIC OF GERMANY. The representations and warranties and covenants given in Sections 6.16 and 7.1.3(f) respectively shall only be given, and be applicable to, a Lender incorporated in the Federal Republic of Germany insofar as the giving of and compliance with such representations and warranties do not result in a violation of or conflict with section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section 4 paragraph 1 a
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no.3 foreign trade law (AWG) (Außenwirtschaftsgesetz)), any provision of Council Regulation (EC) 2271/1996 or any similar applicable anti-boycott law or regulation.
ARTICLE VIII

EVENTS OF DEFAULT
SECTION 8.1.    LISTING OF EVENTS OF DEFAULT. Each of the following events or occurrences described in this Section 8.1 shall constitute an “Event of Default”.
SECTION 8.1.1    Non-Payment of Obligations. The Borrower shall default in the payment when due of any amount payable by it under the Loan Documents in the manner required under the Loan Documents unless such failure is solely as a result of either (a) administrative or technical error or (b) a Disruption Event, and, in either case, payment is made within 3 Business Days of its due date.
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) or under any other Loan Document is or shall be incorrect in any material respect when made.
SECTION 8.1.3    Non-Performance of Certain Covenants and Obligations. The Borrower shall default in the due performance and observance of any other agreement contained herein (including, from the Guarantee Release Date, Exhibit N) or in any other Loan Document (other than the covenants set forth in Section 7.1.1(i), Section 7.1.1(l), Section 7.1.1(m), Section 7.1.1(n), Section 7.1.1(o), Section 7.1.4(e), Section 7.1.8, Section 7.1.10 and Section 7.2.4 (but excluding Sections 7.2.4(A) and 7.2.4(B) (which shall be regulated in accordance with Section 9.1.11(d)) and also excluding Section 7.2.4(C), a breach of which shall, subject to the cure periods set out in this Section 8.1.3, result in an Event of Default) and the obligations referred to in Section 8.1.1) and such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower is actively seeking to remedy the same during such period, such default shall continue unremedied for at least 35 days after such notice to the Borrower).
SECTION 8.1.4    Default on Other Indebtedness. (a) The Borrower or any of its Principal Subsidiaries shall fail to pay any Indebtedness that is outstanding in a principal amount of at least $100,000,000 (or the equivalent in other currencies) in the aggregate (but excluding Indebtedness hereunder or with respect to Hedging Instruments) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (b) the occurrence under any Hedging Instrument of an Early Termination Date (as defined in such Hedging Instrument) resulting from (A) any event of default under such Hedging Instrument as to which the Borrower is the Defaulting Party (as defined in such Hedging Instrument) or (B) any Termination Event (as so defined) as to which the Borrower is an Affected Party (as so defined) and, in either event, the termination value with respect to any such Hedging Instrument owed by the Borrower as a result thereof is greater than $100,000,000 and the Borrower fails to pay such termination value when due after applicable grace periods; or (c) any other event shall occur or condition shall exist under
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any agreement or instrument evidencing, securing or relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to cause or permit the holder or holders of such Indebtedness to cause such Indebtedness to become due and payable prior to its scheduled maturity; or (d) any such Indebtedness shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption or by voluntary agreement), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness is required to be made, in each case prior to the scheduled maturity thereof (other than as a result of any sale or other disposition of any property or assets under the terms of such Indebtedness); provided that any required prepayment or right to require prepayment triggered by terms that are certified by the Borrower to be unique to, but customary in, ship financings shall not constitute an Event of Default under this Section 8.1.4 so long as any required prepayment is made when due. For purposes of determining Indebtedness for any Hedging Instrument, the principal amount of the obligations under any such instrument at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or any Principal Subsidiary would be required to pay if such instrument were terminated at such time.
SECTION 8.1.5    Bankruptcy, Insolvency, etc. The Borrower, any of the Material Guarantors 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:
i.    generally fail to pay, or admit in writing its inability to pay, its debts as they become due;
ii.    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;
iii.    in the absence of such application, consent or acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or other custodian for it or for a substantial part of its property, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 60 days, provided that in the case of such an event in respect of the Borrower or any Material Guarantor, such Person hereby expressly authorizes the Facility Agent and each Lender to appear in any court conducting any relevant proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents;
iv.    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, any Material Guarantor or any of such Subsidiaries, and, if any such case or proceeding is not commenced by the Borrower, such Material Guarantor or such Subsidiary, such case or proceeding shall be consented to or acquiesced in by the Borrower, such Material Guarantor or such Subsidiary or shall result in the entry of an order for relief or shall remain for 60 days undismissed, provided that the Borrower and each Material Guarantor hereby expressly authorizes the Facility Agent and each Lender to appear in any court conducting any such case or proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents; or
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v.    take any corporate action authorizing, or in furtherance of, any of the foregoing.
SECTION 8.2.    ACTION IF BANKRUPTCY. If any Event of Default described in clauses (ii) through (iv) of Section 8.1.5 shall occur with respect to any Group Member, the Commitments (if not theretofore terminated) shall automatically terminate and the outstanding principal amount of the Loan and all other Obligations shall automatically be and become immediately due and payable, without notice or demand.
SECTION 8.3.    ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default (other than any Event of Default described in clauses (ii) through (iv) of Section 8.1.5 with respect to a Group Member) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Facility Agent, upon the direction of the Required Lenders (after consultation with BpiFAE who shall have the right to instruct the Lenders to waive such Event of Default), shall by notice to the Borrower declare all of the outstanding principal amount of the Loan and other Obligations to be due and payable and/or the Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of the Loan and other Obligations shall be and become immediately due and payable, without further notice, demand or presentment, and/or, as the case may be, the Commitments shall terminate.
ARTICLE IX

PREPAYMENT EVENTS
SECTION 9.1.    LISTING OF PREPAYMENT EVENTS. Each of the following events or occurrences described in this Section 9.1 shall constitute a “Prepayment Event”.
SECTION 9.1.1    Change of Control. There occurs any Change of Control.
SECTION 9.1.2    Unenforceability. Any Loan Document shall cease to be the legally valid, binding and enforceable obligation of the Borrower or, to the extent applicable, any Material Guarantor (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 B-1 or in any opinion delivered to the Facility Agent after the Signing Date in connection with this Agreement or (ii) that a court of competent jurisdiction has determined are not material) and such event shall continue unremedied for 15 days after notice thereof has been given to the Borrower by the Facility Agent.
SECTION 9.1.3    Approvals. Any material license, consent, authorization, registration or approval at any time necessary to enable the Borrower, any Material Guarantor or any Principal Subsidiary to conduct its business shall be revoked, withdrawn or otherwise cease to be in full force and effect, unless the same would not have a Material Adverse Effect.
SECTION 9.1.4    Non-Performance of Certain Covenants and Obligations. The Borrower shall default in the due performance and observance of any of the covenants set forth in Sections 4.12, 7.1.1(m), 7.1.4(e) or 7.2.4 (but excluding Section 7.2.4(C)), and, in the case of Sections 7.1.1(m) and 7.1.4(e), such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower is
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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), provided that any such default in respect of Section 7.2.4 (but again excluding Section 7.2.4(C)), that occurs during the Financial Covenant Waiver Period (but without prejudice to the rights of the Lenders in respect of any further breach that may occur following the expiry of the Financial Covenant Waiver Period) shall not (as long as no Event of Default under Section 8.1.5 has occurred and is continuing, or no Prepayment Event under Section 9.1.11 or 9.1.12 has occurred, in each case during the Financial Covenant Waiver Period) constitute a Prepayment Event..
SECTION 9.1.5    Judgments. Any judgment or order for the payment of money in excess of $100,000,000 shall be rendered against the Borrower or any of the Principal Subsidiaries by a court of competent jurisdiction and the Borrower or such Principal Subsidiary shall have failed to satisfy such judgment and either:
a)    enforcement proceedings in respect of any material assets of the Borrower or such Principal Subsidiary shall have been commenced by any creditor upon such judgment or order and shall not have been stayed or enjoined within five (5) Business Days after the commencement of such enforcement proceedings; or
b)    there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
SECTION 9.1.6    Condemnation, etc.. The Purchased Vessel shall be condemned or otherwise taken under color of law or requisitioned and the same shall continue unremedied for at least 20 days, unless such condemnation or other taking would not have a Material Adverse Effect.
SECTION 9.1.7    Arrest. The Purchased Vessel shall be arrested and the same shall continue unremedied for at least 20 days, unless such arrest would not have a Material Adverse Effect.
SECTION 9.1.8    Sale/Disposal of the Purchased Vessel. The Purchased Vessel is sold to a company which is not the Borrower or any other Subsidiary of the Borrower (other than for the purpose of a lease back to the Borrower or any other Subsidiary of the Borrower).
SECTION 9.1.9    BpiFAE Insurance Policy. The BpiFAE Insurance Policy is cancelled for any reason or ceases to be in full force and effect.
SECTION 9.1.10    Illegality. No later than the close of business on the last day of the Option Period related to the giving of any Illegality Notice by an affected Lender pursuant to Section 3.2(b), either: (x) the Borrower has not elected to take an action specified in clause (1) or (2) of Section 3.2(c) or (y) if any such election shall have been made, the Borrower has failed to take the action required in respect of such election. In such circumstances the Facility Agent (at the direction of the affected Lender) shall by notice to the Borrower require the Borrower to prepay in full all principal and interest and all other Obligations owing to such Lender either (i) forthwith or, as the case may be, (ii) on a future specified date not being earlier than the latest date permitted by the relevant law.

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SECTION 9.1.11    Framework Prohibited Events
a)    The Borrower declares, pays or makes or agrees to pay or make, directly or indirectly, any Restricted Payment, except for (i) dividends or other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests or options to purchase Equity Interests, (ii) Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans (including with respect to performance shares issued in the ordinary course of business) for present or former officers, directors, consultants or employees of the Borrower in the ordinary course of business consistent with past practice and (iii) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exercisable for Equity Interests of the Borrower;
b)    a Group Member makes any payment of any kind under any shareholder loan;
c)    a Group Member sells, transfers, leases or otherwise disposes of any its assets, whether by one or a series of related transactions and that disposal or action was not conducted on arms' length terms between a willing seller and a willing buyer and for fair market value;
d)    any Group Member breaches any of the requirements of Section 7.1.1(i), Section 7.1.1(l), Section 7.1.1(n), Section 7.1.1(o), Section 7.1.8, Section 7.1.10, Section 7.2.4(A) or Section 7.2.4(B);
e)    a Group Member completes a Debt Incurrence;
f)    a Group Member enters into a Restricted Loan Arrangement; and/or
g)    a Group Member makes a Restricted Voluntary Prepayment and the Facility Agent (acting upon the instructions of BpiFAE) notifies the Borrower that BpiFAE has confirmed that the Financial Covenant Waiver Period shall come to an end.
SECTION 9.1.12    Breach of Principles and Framework. The Borrower shall default in the due performance and observance of the Principles and/or the Framework (it being agreed that if there is inconsistency between the terms of the Principles and the Framework, the Framework shall prevail) and, if capable of remedy, such default shall continue unremedied for a period of ten (10) days after notice thereof shall have been given to the Borrower by the Facility Agent, provided that, if the default does not otherwise constitute a Default or a Prepayment Event under another section of this Agreement as amended to date, the Borrower, the Facility Agent, the ECA Agent and BpiFAE shall negotiate a resolution in good faith for a maximum period of fifteen (15) days after notice thereof shall have been given to the Borrower by the Facility Agent.
SECTION 9.2.    MANDATORY PREPAYMENT. If any Prepayment Event (other than a Prepayment Event under Section 9.1.10) shall occur and be continuing, the Facility Agent, upon the direction of the Required Lenders, shall by notice to the Borrower require the Borrower to prepay in full on the date of such notice all principal of and interest on the Loan and all other Obligations (and, in such event, the Borrower agrees to so pay the full unpaid amount of the Loan and all accrued and unpaid interest thereon and all other Obligations), provided that in the case of a Prepayment Event arising under Sections 9.1.11 or 9.1.12, such Prepayment Event shall not give rise to an entitlement on the part of the Lenders to terminate
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the Commitments or, where the Loan has been advanced, to require that the Loan is prepaid but instead, where a notice is given by the Facility Agent pursuant to this Section 9.2 following the occurrence of a Prepayment Event under either Section 9.1.11 or 9.1.12, the waiver of Section 7.2.4 contained in Section 9.1.4 shall immediately cease such that any breach of Section 7.2.4 in existence as at the date of the notice from the Facility Agent referred to in the first sentence of this Section 9.2 or any breach occurring at any time after such notice shall constitute a Prepayment Event with all attendant consequences.
SECTION 9.3.    MITIGATION. If the ECA Agent, the Facility Agent or any of the Lenders become aware that an event or circumstance has arisen which will cause the BpiFAE Insurance Policy to be cancelled for any reason or no longer remain in full force and effect they shall notify the Borrower and the Lenders, the Borrower, the ECA Agent and the Facility Agent shall negotiate in good faith for a period of up to 30 days or, if less, the date by which the BpiFAE Insurance Policy shall be terminated or cease to be in full force and effect to determine whether the facility can be restructured and/or the Loan refinanced in a manner acceptable to each of the Lenders in their absolute discretion. The Lenders will use reasonable efforts to involve BpiFAE in such negotiations.
ARTICLE X

THE FACILITY AGENT AND THE ECA AGENT
SECTION 10.1.    ACTIONS. Each Lender hereby appoints Citibank Europe plc, UK Branch, as Facility Agent and SMBC Bank International plc as ECA Agent, as its agent under and for purposes of this Agreement and each other Loan Document (for purposes of this Article X, the Facility Agent and the ECA Agent are referred to collectively as the “Agents”). Each Lender authorizes the Agents to act on behalf of such Lender under this Agreement and each other Loan Document and, in the absence of other written instructions from the Required Lenders received from time to time by the Agents (with respect to which each Agent agrees that it will comply, except as otherwise provided in this Section 10.1 or as otherwise advised by counsel or as otherwise instructed by any French Authority, it being understood and agreed that any instructions provided by a French Authority shall prevail), to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Agents by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto. Neither Agent shall be obliged to act on the instructions of any Lender or the Required Lenders if to do so would, in the opinion of such Agent, be contrary to any provision of this Agreement or any other Loan Document or the BpiFAE Insurance Policy or to any law or the conflicting instructions of any French Authority, or would expose such Agent to any actual or potential liability to any third party. As between the Lenders and the Agents, it is acknowledged that each Agent’s duties under this Agreement and the other Loan Documents are solely mechanical and administrative in nature.
SECTION 10.2.    INDEMNITY. Each Lender hereby indemnifies (which indemnity shall survive any termination of this Agreement) each Agent, pro rata according to such Lender’s Percentage, from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel) that be incurred by or asserted or awarded against, such Agent in any way relating to or arising out of this Agreement and any other Loan Document or any action taken or omitted by such Agent under this Agreement or any other Loan Document; provided that no Lender shall be liable for the payment of any portion of such claims, damages, losses, liabilities and expenses which have resulted from such Agent’s gross negligence or willful misconduct. Without limitation of the
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foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that such Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any such indemnified costs, this Section applies whether any such investigation, litigation or proceeding is brought by any Agent, any Lender or a third party. Neither Agent shall be required to take any action hereunder or under any other Loan Document, or to prosecute or defend any suit in respect of this Agreement or any other Loan Document, unless it is expressly required to do so under this Agreement or is indemnified hereunder to its satisfaction. If any indemnity in favor of an Agent shall be or become, in such Agent’s determination, inadequate, such Agent may call for additional indemnification from the Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given.
SECTION 10.3.    FUNDING RELIANCE, ETC.
a)    Each Lender shall notify the Facility Agent by 4:00 p.m., London time, one day prior to the advance of the Loan if it is not able to fund the following day. Unless the Facility Agent shall have been notified by telephone, confirmed in writing, by any Lender by 4:00 p.m., London time, on the day prior to the advance of the Loan that such Lender will not make available the amount which would constitute its Percentage of the Loan on the date specified therefor, the Facility Agent may assume that such Lender has made such amount available to the Facility Agent and, in reliance upon such assumption, may, but shall not be obliged to, make available to the Borrower a corresponding amount. If and to the extent that such Lender shall not have made such amount available to the Facility Agent, such Lender and the Borrower severally agree to repay the Facility Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date the Facility Agent made such amount available to the Borrower to the date such amount is repaid to the Facility Agent, at the interest rate applicable at the time to the Loan without premium or penalty.
b)    
(i)     Where a sum is to be paid to an Agent under the Finance Documents for another party to this Agreement, that Agent is not obliged to pay that sum to that other party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum
(ii)    Unless paragraph (iii) below applies, if an Agent or its Affiliate or representative on its behalf or at its direction in performing the role of Agent (that Agent and its applicable Affiliate or representative being an “Agent Entity”) pays an amount to another party to this Agreement (unless sub-paragraph (iii) below applies) or, at the direction of such party, that party’s Affiliate, related fund or representative (such other party and its applicable Affiliate, related fund or representative being an “Other Party Entity”) and it proves to be the case (and for this purpose a statement of the relevant Agent given in good faith shall be prima facie evidence of this) that (A) neither that
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Agent nor the applicable Agent Entity actually received that amount or (B) such amount was otherwise paid in error (whether such error was known or ought to have been known to such other party or applicable Other Party Entity), then the party to whom that amount (or the proceeds of any related exchange contract) was paid (or on whose direction its applicable Other Party Entity was paid) by the applicable Agent Entity shall hold such amount on trust or, to the extent not possible as a matter of law, for the account (or will procure that its applicable Other Party Entity holds on trust or for the account) of the Agent Entity and on demand (or will procure that its applicable Other Party Entity shall on demand) refund the same to the Agent Entity together with interest on that amount from the date of payment to the date of receipt by the Agent Entity, calculated by the Agent to reflect its cost of funds.
(iii)    If an Agent, upon the Borrower’s written request, is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then, if and to the extent that such Agent does so but it proves to be the case (and for this purpose a statement of the relevant Agent given in good faith shall be prima facie evidence of this) that it does not then receive funds from a Lender (such Lender being a “Defaulting Lender”) in respect of such sum which it paid to the Borrower (or as it may direct) then: (A) the Agent shall notify (and the Lenders expressly acknowledge that the Agent shall be entitled to so notify) the Borrower of the identity of the Defaulting Lender; (B) without prejudice to any rights of the Borrower against the Defaulting Lender under this Agreement (including, without limitation, in relation to any amounts required to be paid by the Borrower under sub-paragraph (C) below) the Borrower shall (or shall procure that its applicable Other Party Entity to whom such amount was paid shall) hold such amount on trust or, to the extent not possible as a matter of law, for the account, of the relevant Agent and on demand refund it to that Agent; and (C) the Defaulting Lender by whom those funds should have been made available or, if that Defaulting Lender fails to do so (and having regard to paragraph (iv) below), the Borrower shall on demand pay to the relevant Agent the amount (as certified by that Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from the Defaulting Lender
(iv)    It is expressly acknowledged and agreed that, without prejudice to the requirement of the Borrower to make the payments referred to in paragraphs (ii) and (iii) above:
(A) the Borrower shall not be obliged to pay interest for the account of the Defaulting Lender on the part of the Loan that was not made available by that Defaulting Lender but which was pre-funded by the relevant Agent pursuant to this Section 10.3(b); and
(B) the Defaulting Lender shall indemnify the Borrower for any costs, losses or liabilities incurred by the Borrower arising from the Defaulting Lender’s failure to make any payment under sub-Section (iii) above.
SECTION 10.4.    EXCULPATION. Neither of the Agents nor any of their respective directors, officers, employees or agents shall be liable to any Lender for any action taken or
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omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for its own willful misconduct or gross negligence. Without limitation of the generality of the foregoing, each Agent (i) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it and in accordance with the advice of such counsel, accountants or experts, (ii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement, (iii) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of the Obligors or the existence at any time of any Default or Prepayment Event or to inspect the property (including the books and records) of the Obligors, (iv) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto, (v) shall incur no liability under or in respect of this Agreement by action upon any notice, consent, certificate or other instrument or writing (which may be by telecopier) believed by it to be genuine and signed or sent by the proper party or parties, and (vi) shall have no responsibility to the Borrower or any Lender on account of (A) the failure of a Lender or the Obligors to perform any of its obligations under this Agreement or any Loan Document; (B) the financial condition of the Obligors; (C) the completeness or accuracy of any statements, representations or warranties made in or pursuant to this Agreement or any Loan Document, or in or pursuant to any document delivered pursuant to or in connection with this Agreement or any Loan Document; or (D) the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of this Agreement or any Loan Document or of any document executed or delivered pursuant to or in connection with any Loan Document.
SECTION 10.5.    SUCCESSOR. The Facility Agent may resign as such at any time upon at least 30 days’ prior notice to the Borrower and all Lenders and shall resign where required to do in accordance with Section 4.14, provided that any such resignation shall not become effective until a successor Facility Agent has been appointed as provided in this Section 10.5 and such successor Facility Agent has accepted such appointment. If the Facility Agent at any time shall resign, the Required Lenders shall, subject to the immediately preceding proviso and subject to the consent of the Borrower (such consent not to be unreasonably withheld), appoint another Lender as a successor to the Facility Agent which shall thereupon become such Facility Agent’s successor hereunder (provided that the Required Lenders shall, subject to the consent of the Borrower unless an Event of Default or a Prepayment Event shall have occurred and be continuing (such consent not to be unreasonably withheld or delayed) offer to each of the other Lenders in turn, in the order of their respective Percentages of the Loan, the right to become successor Facility Agent). If no successor Facility Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the Facility Agent’s giving notice of resignation, then the Facility Agent may, on behalf of the Lenders, appoint a successor Facility Agent, which shall be one of the Lenders or a commercial banking institution having a combined capital and surplus of at least $1,000,000,000 (or the equivalent in other currencies), subject, in each case, to the consent of the Borrower (such consent not to be unreasonably withheld). Upon the acceptance of any appointment as Facility Agent hereunder by a successor Facility Agent, such successor Facility Agent shall be entitled to receive from the resigning Facility Agent such documents of transfer and assignment as such successor Facility Agent may reasonably request,
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and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the resigning Facility Agent, and the resigning Facility Agent shall be discharged from its duties and obligations under this Agreement. After any resigning Facility Agent’s resignation hereunder as the Facility Agent, the provisions of:
a)    this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Facility Agent under this Agreement; and
b)    Section 11.3 and Section 11.4 shall continue to inure to its benefit.
If a Lender acting as the Facility Agent assigns its Loan to one of its Affiliates, such Facility Agent may, subject to the consent of the Borrower (such consent not to be unreasonably withheld or delayed) assign its rights and obligations as Facility Agent to such Affiliate.
SECTION 10.6.    LOANS BY THE FACILITY AGENT. The Facility Agent shall have the same rights and powers with respect to the Loan made by it or any of its Affiliates. The Facility Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Affiliate of the Borrower as if the Facility Agent were not the Facility Agent hereunder and without any duty to account therefor to the Lenders. The Facility Agent shall have no duty to disclose information obtained or received by it or any of its Affiliates relating to the Borrower or its Subsidiaries to the extent such information was obtained or received in any capacity other than as the Facility Agent.
SECTION 10.7.    CREDIT DECISIONS. Each Lender acknowledges that it has, independently of each Agent and each other Lender, and based on such Lender’s review of the financial information of the Obligors, this Agreement, the other Loan Documents (the terms and provisions of which being satisfactory to such Lender) and such other documents, information and investigations as such Lender has deemed appropriate, made its own credit decision to extend its Commitment. Each Lender also acknowledges that it will, independently of each Agent and each other Lender, and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under this Agreement or any other Loan Document.
SECTION 10.8.    COPIES, ETC. Each Agent shall give prompt notice to each Lender of each notice or request required or permitted to be given to such Agent by the Borrower pursuant to the terms of this Agreement (unless concurrently delivered to the Lenders by the Borrower). Each Agent will distribute to each Lender each document or instrument received for its account and copies of all other communications received by such Agent from the Borrower for distribution to the Lenders by such Agent in accordance with the terms of this Agreement.
SECTION 10.9.    THE AGENTS’ RIGHTS. Each Agent may (i) assume that all representations or warranties made or deemed repeated by the Obligors in or pursuant to this Agreement or any Loan Document are true and complete, unless, in its capacity as the Facility Agent, it has acquired actual knowledge to the contrary, (ii) assume that no Default has occurred unless, in its capacity as an Agent, it has acquired actual knowledge to the contrary, (iii) rely on any document or notice believed by it to be genuine, (iv) rely as to legal or other professional matters on opinions and statements of any legal or other professional advisers selected or approved by it, (v) rely as to any factual matters which might reasonably be expected to be within the knowledge of the Borrower on a certificate signed by or on behalf of the Borrower and (vi) refrain from exercising any right, power, discretion or remedy unless and
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until instructed to exercise that right, power, discretion or remedy and as to the manner of its exercise by the Lenders (or, where applicable, by the Required Lenders) and unless and until such Agent has received from the Lenders any payment which such Agent may require on account of, or any security which such Agent may require for, any costs, claims, expenses (including legal and other professional fees) and liabilities which it considers it may incur or sustain in complying with those instructions.
SECTION 10.10.    THE FACILITY AGENT’S DUTIES. The Facility Agent shall (i) if requested in writing to do so by a Lender, make enquiry and advise the Lenders as to the performance or observance of any of the provisions of this Agreement or any Loan Document by the Borrower or as to the existence of an Event of Default and (ii) inform the Lenders promptly of any Event of Default of which the Facility Agent has actual knowledge.
The Facility Agent shall not be deemed to have actual knowledge of the falsehood or incompleteness of any representation or warranty made or deemed repeated by the Obligors or actual knowledge of the occurrence of any Default unless a Lender or the Borrower shall have given written notice thereof to the Facility Agent in its capacity as the Facility Agent. Any information acquired by the Facility Agent other than specifically in its capacity as the Facility Agent shall not be deemed to be information acquired by the Facility Agent in its capacity as the Facility Agent.
The Facility Agent may, without any liability to account to the Lenders, generally engage in any kind of banking or trust business with the Borrower or with the Borrower’s Subsidiaries or associated companies or with a Lender as if it were not the Facility Agent.
SECTION 10.11.    EMPLOYMENT OF AGENTS. In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to this Agreement or the Loan Documents, each Agent shall be entitled to employ and pay agents to do anything which such Agent is empowered to do under or pursuant to this Agreement or the Loan Documents (including the receipt of money and documents and the payment of money); provided that, unless otherwise provided herein, including without limitation Section 11.3, the employment of such agents shall be for such Agent’s account, and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by such Agent in good faith to be competent to give such opinion, advice or information.
SECTION 10.12.    DISTRIBUTION OF PAYMENTS. The Facility Agent shall pay promptly to the order of each Lender that Lender’s Percentage share of every sum of money received by the Facility Agent pursuant to this Agreement or the Loan Documents (including, without limitation, any amounts payable pursuant to Section 4.4.1 but not including any amounts payable pursuant to the Fee Letter and any amounts which, by the terms of this Agreement or the Loan Documents, are paid to the Facility Agent for the account of the Facility Agent alone or specifically for the account of one or more Lenders) and until so paid such amount shall be held by the Facility Agent on trust absolutely for that Lender.
SECTION 10.13.    REIMBURSEMENT. The Facility Agent shall have no liability to pay any sum to a Lender until it has itself received payment of that sum. If, however, the Facility Agent does pay any sum to a Lender on account of any amount prospectively due to that Lender pursuant to Section 10.12 before it has itself received payment of that amount, and the Facility Agent does not in fact receive payment within two (2) Business Days after the date on which that payment was required to be made by the terms of this Agreement or the Loan
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Documents, that Lender will, on demand by the Facility Agent, refund to the Facility Agent an amount equal to the amount received by it, together with an amount sufficient to reimburse the Facility Agent for any amount which the Facility Agent may certify that it has been required to pay by way of interest on money borrowed to fund the amount in question during the period beginning on the date on which that amount was required to be paid by the terms of this Agreement or the Loan Documents and ending on the date on which the Facility Agent receives reimbursement.
SECTION 10.14.    INSTRUCTIONS. Where an Agent is authorized or directed to act or refrain from acting in accordance with the instructions of the Lenders or of the Required Lenders each of the Lenders shall provide such Agent with instructions within three (3) Business Days of such Agent’s request (which request may be made orally or in writing). If a Lender does not provide such Agent with instructions within that period, that Lender shall be bound by the decision of such Agent. Nothing in this Section 10.14 shall limit the right of such Agent to take, or refrain from taking, any action without obtaining the instructions of the Lenders or the Required Lenders if such Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Lenders under or in connection with this Agreement or the Loan Documents. In that event, such Agent will notify the Lenders of the action taken by it as soon as reasonably practicable, and the Lenders agree to ratify any action taken by the Facility Agent pursuant to this Section 10.14.
SECTION 10.15.    PAYMENTS. All amounts payable to a Lender under this Section 10 shall be paid to such account at such bank as that Lender may from time to time direct in writing to the Facility Agent.
SECTION 10.16.    “KNOW YOUR CUSTOMER” CHECKS. Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in this Agreement or the Loan Documents.
SECTION 10.17.    NO FIDUCIARY RELATIONSHIP. Except as provided in Section 10.12, no Agent shall have any fiduciary relationship with or be deemed to be a trustee of or for any other person and nothing contained in this Agreement or any Loan Document shall constitute a partnership between any two or more Lenders or between either Agent and any other person.
SECTION 10.18.    ILLEGALITY. The Agent shall refrain from doing anything which it reasonably believes would be contrary to any law of any jurisdiction (including but not limited to England and Wales, the United States of America or any jurisdiction forming part of it) or any regulation or directive of any agency of such state or jurisdiction or which would or might render it liable to any person and may without liability do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
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ARTICLE XI

MISCELLANEOUS PROVISIONS
SECTION 11.1.    WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrower and the Required Lenders; provided that no such amendment, modification or waiver which would:
a)    contravene or be in breach of the terms of the BpiFAE Insurance Policy or the arrangements with Natixis DAI relating to the CIRR (if the Fixed Rate applies) shall be effective unless consented to by, as applicable, BpiFAE and/or Natixis DAI;
b)    modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
c)    modify this Section 11.1 or change the definition of “Required Lenders” shall be made without the consent of each Lender;
d)    increase the Commitment of any Lender shall be made without the consent of such Lender;
e)    reduce any fees described in Article III payable to any Lender shall be made without the consent of such Lender;
f)    extend the Commitment Termination Date of any Lender shall be made without the consent of such Lender;
g)    extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on the Loan (or reduce the principal amount of or rate of interest on the Loan) owed to any Lender shall be made without the consent of such Lender; or
h)    affect adversely the interests, rights or obligations of the Facility Agent in its capacity as such shall be made without consent of the Facility Agent.
No failure or delay on the part of the Facility Agent or any Lender in exercising any power or right under this Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by any the Facility Agent or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The Lenders hereby agree, at any time and from time to time that the Nordea Agreement or the Bank of Nova Scotia Agreement is amended or refinanced, to negotiate in good faith to amend this Agreement to conform any representations, warranties, covenants or events of default in
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this Agreement to the amendments made to any substantively comparable provisions in the Nordea Agreement or the Bank of Nova Scotia Agreement or any refinancing thereof.
Neither the Borrower’s rights nor its obligations under the Loan Documents shall be changed, directly or indirectly, as a result of any amendment, supplement, modification, variance or novation of the BpiFAE Insurance Policy, except any amendments, supplements, modifications, variances or novations, as the case may be, which occur (i) with the Borrower’s consent, (ii) at the Borrower’s request or (iii) in order to conform to amendments, supplements, modifications, variances or novations effected in respect of the Loan Documents in accordance with their terms.
SECTION 11.2.    NOTICES.
a)    All notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing, by facsimile or by electronic mail and addressed, delivered or transmitted to such party at its address, facsimile number or electronic mail address set forth below its signature hereto or set forth in the Lender Assignment Agreement or at such other address, or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient.
b)    So long as Citibank Europe plc, UK Branch is the Facility Agent, the Borrower may provide to the Facility Agent all information, documents and other materials that it furnishes to the Facility Agent hereunder or any other Loan Document (and any guaranties, security agreements and other agreements relating thereto), including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing advance or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due hereunder or any other Loan Document prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of the Agreement and/or any advance or other extension of credit hereunder (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Facility Agent to such email address notified by the Facility Agent to the Borrower; provided that any Communication requested pursuant to Section 7.1.1(h) shall be in a format acceptable to the Borrower and the Facility Agent.
c)    The Borrower agrees that the Facility Agent may make such items included in the Communications as the Borrower may specifically agree available to the Lenders by posting such notices, at the option of the Borrower, on Intralinks or any similar such platform (the “Platform”) acceptable to the Borrower. Although the primary web portal is secured with a dual firewall and a User ID/Password Authorization System and the Platform is secured through a single user per deal authorization method whereby each user may access the Platform only on a deal-by-deal basis, the Borrower acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided
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“as is” and “as available” and (iii) neither the Facility Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Facility Agent or any of its Affiliates in connection with the Platform.
d)    The Facility Agent agrees that the receipt of Communications by the Facility Agent at its e-mail address set forth above shall constitute effective delivery of such Communications to the Facility Agent for purposes hereunder and any other Loan Document (and any guaranties, security agreements and other agreements relating thereto).
SECTION 11.3.    PAYMENT OF COSTS AND EXPENSES. The Borrower agrees to pay on demand all reasonable expenses of the Facility Agent (including the reasonable fees and out-of-pocket expenses of counsel to the Facility Agent and of local counsel, if any, who may be retained by counsel to the Facility Agent) in connection with any amendments, waivers, consents, supplements or other modifications to, this Agreement or any other Loan Document as may from time to time hereafter be required, whether or not the transactions contemplated hereby are consummated. The Borrower further agrees to pay, and to save the Facility Agent and the Lenders harmless from all liability for, any stamp, recording, documentary or other similar taxes arising from the execution, delivery or enforcement of this Agreement or the borrowing hereunder or any other Loan Documents. The Borrower also agrees to reimburse the Facility Agent and each Lender upon demand for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and legal expenses) incurred by the Facility Agent or such Lender in connection with (x) the negotiation of any restructuring or “work-out”, whether or not consummated, of any Obligations and (y) the enforcement of any Obligations.
SECTION 11.4.    INDEMNIFICATION. In consideration of the execution and delivery of this Agreement by each Lender and the extension of the Commitments, the Borrower hereby indemnifies and holds harmless the Facility Agent, each Lender and each of their respective Affiliates and their respective officers, advisors, directors and employees (collectively, the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case arising out of or in connection with or by reason of this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby or any actual or proposed use of the proceeds of the Loans (collectively, the “Indemnified Liabilities”), except to the extent such claim, damage, loss, liability or expense is found in a final, non- appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct or the material breach by such Indemnified Party of its obligations under this Agreement, any other Loan Document, the BpiFAE Insurance Policy or Interest Stabilisation Agreement and which breach is not attributable to the Borrower’s own breach of the terms of this Agreement or any other Loan Document or is a claim, damage, loss, liability or expense which would have been compensated under other provisions of the Loan Documents but for any exclusions applicable thereunder.
In the case of an investigation, litigation or other proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation,
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litigation or proceeding is brought by the Borrower, any of its directors, security holders or creditors, an Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto. Each Indemnified Party shall (a)furnish the Borrower with prompt notice of any action, suit or other claim covered by this Section 11.4, (b) not agree to any settlement or compromise of any such action, suit or claim without the Borrower’s prior consent, (c) 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) and (d) at the Borrower’s request, permit the Borrower to assume control of the defense of any such claim, other than regulatory, supervisory or similar investigations, provided that (i) the Borrower acknowledges in writing its obligations to indemnify the Indemnified Party in accordance with the terms herein in connection with such claims, (ii) the Borrower shall keep the Indemnified Party fully informed with respect to the conduct of the defense of such claim, (iii) the Borrower shall consult in good faith with the Indemnified Party (from time to time and before taking any material decision) about the conduct of the defense of such claim, (iv) the Borrower shall conduct the defense of such claim properly and diligently taking into account its own interests and those of the Indemnified Party, (v) the Borrower shall employ counsel reasonably acceptable to the Indemnified Party and at the Borrower’s expense, and (vi) the Borrower shall not enter into a settlement with respect to such claim unless either (A) such settlement involves only the payment of a monetary sum, does not include any performance by or an admission of liability or responsibility on the part of the Indemnified Party, and contains a provision unconditionally releasing the Indemnified Party and each other indemnified party from, and holding all such persons harmless, against, all liability in respect of claims by any releasing party or (B) the Indemnified Party provides written consent to such settlement (such consent not to be unreasonably withheld or delayed). Notwithstanding the Borrower’s election to assume the defense of such action, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such action and the Borrower shall bear the fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Borrower to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, (ii)the actual or potential defendants in, or targets of, any such action include both the Borrower and the Indemnified Party and the Indemnified Party shall have concluded that there may be legal defenses available to it which are different from or additional to those available to the Borrower and determined that it is necessary to employ separate counsel in order to pursue such defenses (in which case the Borrower shall not have the right to assume the defense of such action on the Indemnified Party’s behalf), (iii) the Borrower shall not have employed counsel reasonably acceptable to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action, or (iv) the Borrower authorizes the Indemnified Party to employ separate counsel at the Borrower’s expense. The Borrower acknowledges that none of the Indemnified Parties shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Borrower or any of its security holders or creditors for or in connection with the transactions contemplated hereby, except to the extent such liability is determined in a final non- appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct. In no event, however, shall any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings). If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
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SECTION 11.5.    SURVIVAL. The obligations of the Borrower under Sections 4.3, 4.4, 4.5, 4.6, 4.7, 11.3 and 11.4 and the obligations of the Lenders under Section 10.1, shall in each case survive any termination of this Agreement and the payment in full of all Obligations. The representations and warranties made by the Borrower in this Agreement and in each other Loan Document shall survive the execution and delivery of this Agreement and each such other Loan Document.
SECTION 11.6.    SEVERABILITY. Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or such Loan Document or affecting the validity or enforceability of such provision in any other jurisdiction.
SECTION 11.7.    HEADINGS. The various headings of this Agreement and of each other Loan Document are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or such other Loan Document or any provisions hereof or thereof.
SECTION 11.8.    EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. This Agreement, as a novated and amended Agreement, shall become effective upon the occurrence of the Novation Effective Time under, and as defined in, the Novation Agreement.
SECTION 11.9.    THIRD PARTY RIGHTS. Notwithstanding the provisions of the Contracts (Rights of Third Parties) Act 1999, no term of this Agreement is enforceable by a person who is not a party to it with the exception of BpiFAE and Natixis.
SECTION 11.10.    SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided that:
a)    except to the extent permitted under Section 7.2.6, the Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of the Facility Agent, each Lender and BpiFAE; and
b)    the rights of sale, assignment and transfer of the Lenders are subject to Section 11.11.
SECTION 11.11.    SALE AND TRANSFER OF THE LOAN; PARTICIPATIONS IN THE LOAN. Each Lender may assign its Percentage or portion of the Loan to one or more other Persons (a “New Lender”), or sell participations in its Percentage or portion of the Loan to one or more other Persons; provided that, in the case of assignments where the Fixed Rate applies, such New Lender (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, and subject as provided in Section 11.11.1(iv)) enters into an Interest Stabilisation Agreement.
SECTION 11.11.1    Assignments

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i.    Any Lender with the prior written consents of the Borrower and the Facility Agent (which consents shall not be unreasonably delayed or withheld and which consent, in the case of the Borrower, shall be deemed to have been given in the absence of a written notice delivered by the Borrower to the Facility Agent, on or before the fifth Business Day after receipt by the Borrower of such Lender’s request for consent, stating, in reasonable detail, the reasons why the Borrower proposes to withhold such consent) may at any time (and from time to time) assign or transfer to one or more commercial banks or other financial institutions all or any fraction of such Lender’s portion of the Loan.
ii.    Any Lender, with notice to the Borrower and the Facility Agent, and, notwithstanding the foregoing clause (i), without the consent of the Borrower, or the Facility Agent may assign or transfer (A) to any of its Affiliates, (B) to SFIL or (C) following the occurrence and during the continuance of an Event of Default under Sections 8.1.1, 8.1.4(a) or 8.1.5, to any other Person, in each case, all or any fraction of such Lender’s portion of the Loan.
iii.    Any Lender may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign or charge all or any fraction of its portion of the Loan to any federal reserve or central bank as collateral security in connection with the extension of credit or support by such federal reserve or central bank to such Lender.
iv.    SFIL may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign, charge or otherwise grant security over all or any fraction of its portion of the Loan and of its rights as Lender to CAFFIL as collateral security in connection with the extension of credit or support by CAFFIL to SFIL in respect of this Agreement and the BpiFAE Enhanced Guarantee, provided that at the time of the assignment, charge or grant of security CAFFIL is an Affiliate of SFIL and that such assignment, charge or other security is on terms that (i) CAFFIL shall not have any rights to assign, charge or grant any security over such rights to any other person (other than to BpiFAE pursuant to and in accordance with the BpiFAE Enhanced Guarantee) without the prior written consent of the Borrower, (ii) CAFFIL shall only be entitled to enforce its rights under such assignment, charge or other security without the prior written consent of the Borrower if at that time it remains an Affiliate of SFIL, (iii) prior to any enforcement such assignment, charge or other security, the Borrower and the Facility Agent shall continue to deal solely and directly with SFIL in connection with its rights and obligations as Lender under this Agreement and other Loan Documents (subject to any payment instructions given by SFIL), (iv) for the avoidance of doubt, the Borrower’s rights and obligations under this Agreement shall not be increased or affected (including, without limitation, the right to pay Fixed Rate under Section 3.3.1) as a result of such assignment, charge or security or any enforcement thereof, (v) the Borrower shall not be liable to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay to SFIL had no such assignment, charge or other security been granted and (vi) without prejudice to SFIL’s obligations under that Section, CAFFIL shall be bound by the confidentiality provisions set forth in Section 11.15. in relation to any information to which it applies to the same extent as required of the Lenders. For the avoidance of doubt: (A) if CAFFIL becomes a Lender under this Agreement in respect of any portion of the Loan following
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enforcement of any assignment, charge or other security granted to it by SFIL pursuant to this Section 11.11.1(iv), it shall have the same rights to assign or transfer all or any fraction of such portion of the Loan on and subject to the same terms and conditions as are set forth in this Agreement for assignments and transfers by other Lenders and (B) CAFFIL may not enforce its rights under any such assignment, charge or other security by assigning or transferring all or any fraction of SFIL’s portion of the Loan or any of its rights or obligations under this Agreement or other Loan Documents except pursuant to an assignment or transfer to a commercial bank or other financial institution on and subject to the same terms and conditions as are set forth in this Agreement for assignments and transfers by Lenders.
v.    No Lender may (notwithstanding the foregoing clauses) assign or transfer any of its rights under this Agreement unless it has given prior written notification of the transfer to BpiFAE and (if the Loan is accruing interest at the Fixed Rate) Natixis DAI and has obtained a prior written consent from BpiFAE and Natixis DAI and any Assignee Lender (other than BpiFAE and CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1(iv)) is, if the Fixed Rate applies, eligible to benefit from the CIRR stabilisation. Any assignment or transfer shall comply with the terms of the BpiFAE Insurance Policy.
vi.    Nothing in this Section 11.11.1 shall prejudice the right of the Lender to assign its rights under this Agreement to BpiFAE, if such assignment is required to be made by that Lender to BpiFAE in accordance with the BpiFAE Insurance Policy or the BpiFAE Enhanced Guarantee or, if the Lender is SFIL, to CAFFIL (but only if CAFFIL is, at that time, an Affiliate of SFIL) upon the enforcement of any security granted pursuant, and subject to the provisions of paragraph (iv) of Section 11.11.1, in connection with the BpiFAE Enhanced Guarantee.
Each Person described in the foregoing clauses as being the Person to whom such assignment or transfer is to be made, is hereinafter referred to as an “Assignee Lender”. Assignments in a minimum aggregate amount of $25,000,000 (or, if less, all of such Lender’s portion of the Loan and Commitment) (which assignment or transfer shall be of a constant, and not a varying, percentage of such Lender’s portion of the Loan) are permitted; provided that the Borrower and the Facility Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned or transferred to an Assignee Lender until:
a)    written notice of such assignment or transfer, together with payment instructions, addresses and related information with respect to such Assignee Lender, shall have been given to the Borrower and the Facility Agent by such Lender and such Assignee Lender;
b)    such Assignee Lender shall have executed and delivered to the Borrower and the Facility Agent a Lender Assignment Agreement, accepted by the Facility Agent and any other agreements required by the Facility Agent or, if the Fixed Rate applies, Natixis in connection therewith; and
c)    the processing fees described below shall have been paid.

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From and after the date that the Facility Agent accepts such Lender Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to have become a party hereto and to the extent that rights and obligations hereunder have been assigned or transferred to such Assignee Lender in connection with such Lender Assignment Agreement, shall have the rights and obligations of a Lender hereunder and under the other Loan Documents, and (y) the assignor Lender, to the extent that rights and obligations hereunder have been assigned or transferred by it, shall be released from its obligations hereunder and under the other Loan Documents, other than any obligations arising prior to the effective date of such assignment. Except to the extent resulting from a subsequent change in law, in no event shall the Borrower be required to pay to any Assignee Lender any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no such assignment been made. Such assignor Lender or such Assignee Lender must also pay a processing fee to the Facility Agent upon delivery of any Lender Assignment Agreement in the amount of $5,000 (and shall also reimburse the Facility Agent and Natixis for any reasonable out-of-pocket costs, including reasonable attorneys’ fees and expenses, incurred in connection with the assignment).
SECTION 11.11.2    Participations. Any Lender may at any time sell to one or more commercial banks or other financial institutions (each of such commercial banks and other financial institutions being herein called a “Participant”) participating interests in its Loan; provided that:
1.    no participation contemplated in this Section 11.11.2 shall relieve such Lender from its obligations hereunder;
2.    such Lender shall remain solely responsible for the performance of its obligations hereunder;
3.    the Borrower and the Facility Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and each of the other Loan Documents;
4.    no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant’s consent, take any actions of the type described in clauses (b) through (f) of Section 11.1;
5.    the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no participating interest been sold; and
6.    each Lender that sells a participation under this Section 11.11.2 shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each of the Participant’s interest in that Lender’s portion of the Loan, Commitments or other interests hereunder (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender may treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes hereunder.
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The Borrower acknowledges and agrees that each Participant, for purposes of Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and clause (e) of 7.1.1, shall be considered a Lender.
SECTION 11.11.3    Register. The Facility Agent shall maintain at its address referred to in Section 11.2 a copy of each Lender Assignment Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment(s) of, and principal amount of the Loan owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Facility Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
SECTION 11.11.4    Rights of BpiFAE to payments. The Borrower acknowledges that, immediately upon any payment by BpiFAE (i) of any amounts to a Lender under the BpiFAE Insurance Policy, BpiFAE will be automatically subrogated to the extent of such payment to the rights of that Lender under the Loan Documents or (ii) of any amount under the BpiFAE Enhanced Guarantee and the enforcement of any related security granted by SFIL to any of its Affiliates, which may benefit BpiFAE after payment by BpiFAE under the BpiFAE Enhanced Guarantee, BpiFAE will be automatically entitled to receive the payments normally due to SFIL under the Loan Documents( but, for the avoidance of doubt, such payments shall continue to be made by the Borrower to the Facility Agent in accordance with the provisions of Section 4.8 or any other relevant provisions of this Agreement, as applicable).
SECTION 11.12.    OTHER TRANSACTIONS. Nothing contained herein shall preclude the Facility Agent or any Lender from engaging in any transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or any of its Affiliates in which the Borrower or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13.    BPIFAE INSURANCE POLICY.
SECTION 11.13.1    Terms of BpiFAE Insurance Policy
a)    The BpiFAE Insurance Policy will cover 100% of the Loan.
b)    The BpiFAE Premium will equal 3% of the aggregate principal amount of the Loan as at the Actual Delivery Date.
c)    If, after the Actual Delivery Date, the Borrower prepays all or part of the Loan in accordance with this Agreement, BpiFAE shall reimburse to the ECA Agent for the account of the Borrower an amount equal to 80% of all or a corresponding proportion of the unexpired portion of the BpiFAE Premium, having regard to the amount of the prepayment and the remaining term of the Loan, such amount to be calculated in accordance with the following formula:
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R = P x (1 – (1 / (1+3%)) x (N / (12 * 365)) x 80%
where:
“R” means the amount of the refund;
“P” means the amount of the prepayment;
“N” means the number of days between the effective prepayment date and Final Maturity; and
P x (1 – (1 / (1+3%)) corresponds to the share of the financed BpiFAE Premium corresponding to P.
SECTION 11.13.2    Obligations of the Borrower. Provided that the BpiFAE Insurance Policy complies with Section 11.13.1 and remains in full force and effect, the Borrower shall pay the balance of the BpiFAE Premium calculated in accordance with Section 11.13.1(b) and still owing to BpiFAE on the Actual Delivery Date to BpiFAE on the Actual Delivery Date by directing the Agent in the Loan Request to pay the Additional Advance in respect of the BpiFAE Premium directly to BpiFAE.
SECTION 11.13.3    Obligations of the ECA Agent and the Lenders.
a)    Promptly upon receipt of the BpiFAE Insurance Policy from BpiFAE, the ECA Agent shall (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE Insurance Policy) send a copy thereof to the Borrower.
b)    The ECA Agent shall perform such acts or provide such information, which are, acting reasonably, within its power so to perform or so to provide, as required by BpiFAE under the BpiFAE Insurance Policy as necessary to ensure that the Lenders obtain the support of BpiFAE pursuant to the BpiFAE Insurance Policy.
c)    Each Lender will co-operate with the ECA Agent, the Facility Agent and each other Lender, and take such action and/or refrain from taking such action as may be reasonably necessary, to ensure that the BpiFAE Insurance Policy and each Interest Stabilisation Agreement continues in full force and effect and shall indemnify and hold harmless each other Lender in the event that the BpiFAE Insurance Policy or such Interest Stabilisation Agreement (as the case may be) does not continue in full force and effect due to its gross negligence or willful default or due to a voluntary change in status which results in it no longer being eligible for CIRR interest stabilisation.
d)    The ECA Agent shall, in conjunction with the Facility Agent:
i.    make written requests to BpiFAE seeking a reimbursement of the BpiFAE Premium in the circumstances described in Section 11.13.1(c) promptly after the relevant cancellation or prepayment and (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE Insurance Policy) provide a copy of the request to the Borrower;
ii.    use its reasonable endeavours to seek any reimbursement of the BpiFAE Premium to which the ECA Agent is entitled;

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iii.    pay to the Borrower (in the same currency as the refund received from BpiFAE) the full amount of any reimbursement of the BpiFAE Premium that the ECA Agent receives from BpiFAE within two (2) Business Days of receipt with same day value; and
iv.    relay the good faith concerns of the Borrower to BpiFAE regarding the amount of any reimbursement to which the ECA Agent is entitled, it being agreed that the ECA Agent’s obligation shall be no greater than simply to pass on to BpiFAE the Borrower’s concerns.
SECTION 11.14.    LAW AND JURISDICTION
SECTION 11.14.1    Governing Law. This Agreement and any non- contractual obligations arising out of or in respect of this Agreement shall in all respects be governed by and interpreted in accordance with English Law.
SECTION 11.14.2    Jurisdiction. For the exclusive benefit of the Facility Agent and the Lenders, the parties to this Agreement irrevocably agree that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and that any proceedings may be brought in those courts. The Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Section, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum.
SECTION 11.14.3    Alternative Jurisdiction. Nothing contained in this Section shall limit the right of the Facility Agent or the Lenders to commence any proceedings against the Borrower in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
SECTION 11.14.4    Service of Process. Without prejudice to the right of the Facility Agent or the Lenders to use any other method of service permitted by law, the Borrower irrevocably agrees that any writ, notice, judgment or other legal process shall be sufficiently served on it if addressed to it and left at or sent by post to RCL Cruises Ltd., presently at Building 3, The Heights – Brooklands, Weybridge, Surrey, KT13 ONY, Attention: General Counsel, and in that event shall be conclusively deemed to have been served at the time of leaving or, if posted, at 9:00 am on the third Business Day after posting by prepaid first class registered post.
SECTION 11.15.    CONFIDENTIALITY. Each of the Facility Agent and the Lenders agrees to maintain and to cause its Affiliates to maintain the confidentiality of all information provided to it by the Borrower or any Subsidiary of the Borrower, or by the Facility Agent on the Borrower’s or such Subsidiary’s behalf, under this Agreement, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement or in connection with other business now or hereafter existing or contemplated with the Borrower or any Subsidiary, except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by it or its Affiliates or their respective directors, officers, employees and agents, or (ii) was or becomes available on a non-confidential basis from a source other than the Borrower or any of its Subsidiaries so long as such source is not, to its knowledge, prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Borrower or any of its Affiliates; provided, however,
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that it may disclose such information (A) at the request or pursuant to any requirement of any self-regulatory body, governmental body, agency or official to which the Facility Agent, any Lender or any of their respective Affiliates is subject or in connection with an examination of the Facility Agent, such Lender or any of their respective Affiliates by any such authority or body, including without limitation the Republic of France and any French Authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable requirement of law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Facility Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder; (F) to the Facility Agent or such Lender’s independent auditors, counsel, and any other professional advisors of the Facility Agent or such Lender who are advised of the confidentiality of such information; (G) to any participant or assignee, provided that such Person agrees to keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (H) as to the Facility Agent, any Lender or their respective Affiliates, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Borrower or any Subsidiary is party with the Facility Agent, such Lender or such Affiliate; (I) to its Affiliates and its Affiliates’ directors, officers, employees, professional advisors and agents, provided that each such Affiliate, director, officer, employee, professional advisor or agent shall keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (J) to any other party to the Agreement and (K) to the French Authorities and any Person to whom information is required to be disclosed by the French Authorities. Each of the Facility Agent and the Lenders shall be responsible for any breach of this Section 11.15 by any of its Affiliates or any of its or its Affiliates’ directors, officers, employees, professional advisors and agents.
SECTION 11.16.    FRENCH AUTHORITY REQUIREMENTS. The Borrower acknowledges that:
a)    the Republic of France and any French Authority or any authorised representatives specified by these bodies shall be authorised at any time to inspect and make or demand copies of the records, accounts, documents and other deeds of any or all of the Lenders relating to this Agreement;
b)    in the course of its activity as the Facility Agent, the Facility Agent may:
i.    provide the Republic of France and any French Authority with information concerning the transactions to be handled by it under this Agreement; and
ii.    disclose information concerning the subsidized transaction contemplated by this Agreement in the context of internationally agreed consultation/notification proceedings and statutory specifications, including information received from the Lenders relating to this Agreement.
SECTION 11.17.    WAIVER OF IMMUNITY. To the extent that the Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its assets, the Borrower hereby irrevocably waives such immunity in respect of its obligations under this Agreement and the other Loan Documents.
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SECTION 11.18.    ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF EEA FINANCIAL INSTITUTIONS. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of a Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
a)    the application of any Write-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
b)    the effects of any Bail-in Action on any such liability, including, if applicable:
i.    a reduction in full or in part or cancellation of any such liability;
ii.    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
iii.    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any Resolution Authority.

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IN WITNESS WHEREOF, the parties hereto have caused this Hull No. L34 Credit 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                                    
Name:
Title:
Address: 1050 Caribbean Way
Miami, Florida 33132
Facsimile No.: (305) 539-0562
Email: agibson@rccl.com
bstein@rccl.com
Attention: Vice President, Treasurer With a copy to: General Counsel

99

Citibank N.A., London Branch as Global Coordinator
By                                    
Name:
Title:
Citigroup Centre Canada Square
London E14 5LB United Kingdom
Attention: Wei-Fong Chan
Kara Catt Romina Coates
Antoine Paycha
Fax No: +44 20 7986 4881
Tel No: +44 20 7986 3036 /
+44 20 7508 0344
+44 20 7986 4824
+44 20 7500 0907 /
E-mail: weifong.chan@citi.com
kara.catt@citi.com
romina.coates@citi.com
antoine.paycha@citi.com

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Banco Santander, S.A., Paris Branch as Lender
Commitment
9.7505744042% of the Maximum Loan Amount
By                                     
Name:
Title:
Lending Office:
374 rue Saint Honoré 75001 Paris
France
Operational address:
Ciudad Financiera Avenida de Cantabria s/n
Edificio Encinar 2a planta 28600 Boadilla del
Monte Spain
Attention: Elise Regnault
Julián Arroyo Angela Rabanal
Ecaterina Mucuta Vanessa Berrio
Ana Sanz Gómez
Fax No: +34 91 257 1682
Tel No: +34 912893722 /
+1 212-297-2919
+1 212-297-2942
+33 1 53 53 70 46
+34 91 289 10 28
+34 91 289 17 90
E-mail: elise.regnault@gruposantander.com
Julian.Arroyo@santander.us arabanal@santander.us
Ecaterina.mucuta@gruposantander.com vaberrio@gruposantander.com anasanz@gruposantander.com
MiddleOfficeParis@gruposantander.com

101

BNP PARIBAS as Lender
Commitment
3.9306453494% of the Maximum Loan Amount
By                                     
Name:
Title:
BNP PARIBAS
Front Office to keep copied to all matters. BNPP SA
37 RUE DU MARCHE SAINT HONORE
75001 PARIS ACI : CHC03B1
Alexandre de VATHAIRE / Mauricio GONZALEZ
alexandre.devathaire@bnpparibas.com mauricio.gonzalez@us.bnpparibas.com
Tel : 00 331 42 98 00 29/00 1212 841 38 88
Middle Office:
For Operational / Servicing matters
KHALID BOUITIDA /
THIERRY ANEZO / ESTELLE FARNY MILLENAIRE 4
35, RUE DE LA GARE
75019 PARIS ACI : CVA05A1
khalid.k.bouitida@bnpparibas.com
thierry.anezo@bnpparibas.com
estelle.farny@bnpparibas.com
Tel : 00 331 42 98 58 69 / 00 331 43 16 81 57 / 01 40 14 59 84
Back Office :
For Standard Settlement Instruction authentication/call-back
STEVE LOUISOR / VALERIE DUMOULIN MILLENAIRE 4
35, RUE DE LA GARE
75019 PARIS ACI : CVA03A1
paris.cib.boci.ca.3@bnpparibas.com
valerie.dumoulin@bnpparibas.com
steve.louisor@bnpparibas.com
ls1.loanservicinglisbon@bnpparibas.com
Tel : 00 331 55 77 91 86 / 00 331 40 14 46 59


102

HSBC CONTINENTAL EUROPE as Lender
Commitment
7.2499999337% of the Maximum Loan Amount
By                                    
Name:
Title::
HSBC Continental Europe – Global Banking Agency Operations
(GBAO)
Transaction Manager Unit
103 avenue des Champs Elysées 75008 Paris
France
Attention:
Florencia Thomas Alexandra Penda
Fax No: +33 1 40 70 28 80
Tel No: +33 1 40 70 73 81 /
+33 1 41 02 67 50
Email: florencia.thomas@hsbc.fr alexandra.penda@hsbc.fr
Copy to:
HSBC Continental Europe
103 avenue des Champs Elysées 75008 Paris
France
Attention: Julie Bellais
Celine Karsenty
Fax No: +33 1 40 70 78 93
Tel No: +33 1 40 70 28 59 /
+33140702297
Email: julie.bellais@hsbc.fr celine.karesenty@hsbc.fr


103

Société Générale as Lender
Commitment
9.9328352929% of the Maximum Loan Amount
By                                    
Name:
Title:
Société Générale Facility Office 29 Boulevard
Haussmann
75009 Paris France
For operational/servicing matters:

Bouchra BOUMEZOUED / Tatiana BYCHKOVA
Société Générale
189, rue d’Aubervilliers 75886
PARIS CEDEX 18
OPER/FIN/CAF/DMT6
Phone: +33 1 57 29 13 12 / +33 1 58 98 43 05
Email: bouchra.boumezoued@sgcib.com
tatiana.bychkova@sgcib.com
par-oper-caf-dmt6@sgcib.com
For credit matters:

Francois ROLLAND / Mohamed MEROUANE
Société Générale
189, rue d’Aubervilliers 75886
PARIS CEDEX 18
GBSU/FTB/SMO/EXT
Phone: +33 1 58 98 17 78 / +33 1 58 98 92 06
Email: list.par-gbsu-ftb-smo-ext-aom@sgcib.com


104

SMBC Bank International plc
as ECA Agent and a Lender
Commitment
2.7360454163% of the Maximum Loan Amount
By                                    
Name:
Title:
1/3/5 rue Paul Cézanne, 75008 Paris, France
Attention: Cedric Le Duigou
Guillaume Branco Herve Billi
Claire Lucien Helene Ly
Fax No: +33 1 44 90 48 01
Tel No:
Cedric Le Duigou: +33 1 44 90 48 83
Guillaume Branco: +33 1 44 90 48 71
Herve Billi: +33 1 44 90 48 48
Claire Lucien: +33 1 44 90 48 49
Helene Ly: +33 1 44 90 48 76
E-mail : cedric_leduigou@fr.smbcgroup.com
guillaume_branco@fr.smbcgroup.com
herve_billi@fr.smbcgroup.com
claire_lucien@fr.smbcgroup.com
helene_ly@fr.smbcgroup.com

105

SFIL as Lender
Commitment
66.3998996035% of the Maximum Amount
Loan
By                                    
Name:
Title:
1-3, rue de Passeur de Boulogne – CS
80054
92861 Issy-les-Moulineaux Cedex 9
France
Contact Person
Loan Administration Department:
Direction du Crédit Export:
Pierre-Marie Debreuille / Anne Crépin
Direction des Opérations:
Dominique Brossard / Patrick Sick
Telephone:
Pierre-Marie Debreuille
+33 1 73 28 87 64
Anne Crépin +33 1 73 28 88 59
Dominique Brossard +33 1 73 28 91 93
Patrick Sick +33 1 73 28 87 66
Email:
pierre-marie.debreuille@sfil.fr
anne.crepin@sfil.fr
dominique.brossard@sfil.fr
patrick.sick@sfil.fr
refinancements-export@sfil.fr
creditexport_ops@sfil.fr
Fax: + 33 1 73 28 85 04


106

Citibank Europe plc, UK Branch as Facility Agent
By                                     
Name:
Title:
5th Floor Citigroup Centre Mail drop CGC2
05-65
25 Canada Square Canary Wharf London E14 5LB
U.K.
Fax no.: +44 20 7492 3980
Attention: EMEA Loans Agency




107


Annex A

Framework




DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS


Please note that this is a non-binding document which remains subject to changes and additional requests. Decisions will be taken on a case-by-case basis.

Preamble

The Corona-pandemic continues to heavily affect the global tourism industry, including all cruise ship operators (“Companies”, a cruise operator the “Company” - including, if any, the guarantor and/or the holding company and/or the group). Almost all cruise ship operations are still suspended with various “no-sail orders” still in place.

As the cruise ship operations are still largely suspended, several cruise ship operators are expected to require an extension of the existing debt deferral initiative. The European ECAs (“ECAs”) intend to provide a coordinated response to these requests on a pan-European basis.

This document sets out the key principles (the “Terms and Conditions”) of a framework for a debt deferral extension of principal repayments and testing of financial covenants (the “Debt Deferral Extension” or “DDFE”) for already executed ECAs covered loan agreements (“Loan Agreement”) in connection with the financing of cruise vessels.

The terms of the Debt Deferral Extension are preliminary and informative in nature and shall not be deemed to be binding nor shall they represent any commitment by the ECAs in respect thereof. All Companies that are not already in formal debt restructuring proceedings can apply for the Debt Deferral Extension. ECAs are available to evaluate granting of the Debt Deferral Extension on a case by case basis subject to specific terms and conditions to be agreed upon with any of the Companies and nonetheless subject to approval by the respective ECAs competent bodies.

The European ECAs jointly are providing unilateral support to the cruise industry, for the benefit of the yards and the supply chain associated, by providing an extension to the initial temporary relief already given to the Companies, by deferring principal payments falling due from 1st April 2021 to 31st March 2022.

Such support is based on the firm mutual understanding that the Companies, taking advantage of the Debt Deferral Extension, sha l use their best endeavours fulfilling their contractual obligations under their existing shipbuilding contracts with the yard, i.e. do not unreasonably, unduly, and without consultation delay instalments and scheduled vessel deliveries and work in good faith with the yards to resolve any crisis-related construction delays. In particular, the Companies should avoid to cancel existing orders, either already effective and to become effective in the future.

Furthermore, the ECAs believe this initiative to be an important step to safeguard and strengthen the financial position of the Companies. Such support may enable the Companies in dealing with other existing creditors or bondholders in order to receive similar relief. In addition, it is our firm expectation that the Companies engage intensively with their respective shareholders and potential new shareholders to provide all possible support. It is the ECAs understanding that all relevant and involved stakeholders contribute to the efforts of stabilising the liquidity situation of the Companies during the current difficult market conditions in order to avoid formal debt restructuring proceedings. Such shareholders’ and debtholders support will be a major element in the evaluation and decision-making process.

All Companies have implemented liquidity initiatives by raising substantial liquidity throughout the crisis to face the halt of their operations and they will continue to do so if so requested. The ECAs are providing their support on the assumption that the Companies are still in an overall sound financial position and their business model is still well founded, so that as soon as the current travel restrictions will be discharged, the Companies will be able to resume “business as usual” and meet their future financial obligations.





1



DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS



1.    Generic Terms&Conditions of the Debt Deferral Extension

1.1    Deferred Payments on ECA-covered debt

1.1.1    Debt Deferral shall be extended to all principal payments under the original ECA loans and the Existing Deferral Tranche payable between 1st April 2021 and 31st March 2022 ("New Deferred Payments"). The New Deferred Payments shall be expected to be documented and administered as an additional Debt Deferral Tranche (“New Debt Deferral Tranche”).
1.1.2    The repayment schedules of the previously agreed deferred payments until 31.03.2021 (“Existing Deferral Tranche”) and the repayment schedule of the Original Loan will remain unchanged. The repayments under both repayment schedules which are due between 1st April 2021 and 31st March 2022 shall be covered by drawings under the New Debt Deferral Tranche.
1.1.3    The New Debt Deferral Tranche shall be repaid within 5 years starting from April 1st 2022, if commercially feasible on the same due dates as the originally scheduled payments, until 31.03.2027, irrespective of remaining tenor of each individual export financing and subject to 1.1.6 below.
1.1.4    Interest (floating or fixed; commitment fee on undisbursed amounts) and any scheduled ECA premium payments shall continue to be payable.
1.1.5    ECA cover remains effective and extended also on New Deferred Payments. ECAs coverage on any potential additional interest margin arising from the New Debt Deferral Tranche will be at discretion of each ECAs.
1.1.6    In the event that the payment of New Deferred Payments on the same due dates as the originally scheduled payments will result not feasible or advisable for the ECAs, repayment schedule of New Deferred Payments may be determined individually on the basis of a case-by- case examination by the ECA (for example the maturity date under the existing ECA financing (as amended by the Existing Debt Deferral) is less than the theoretical final maturity of the New Debt Deferral Tranche.

1.2    Suspension of Financial Covenant Testing

1.2.1    Testing of all agreed Financial Covenants (in disbursed and undisbursed facilities) shall continue to be suspended until 31.03.2022 ("Testing Suspension" with non-compliance does not trigger an Event of Default).
1.2.2    Over the next 18 months, the financing banks and ECAs shall have the right / option to trigger on their own discretion the negotiation to reset the individual financial covenants of a Company. The basic idea behind is that a corridor for the financial covenants shall be set for the coming years as soon the operational performance is in a ramp-up phase and the financial visibility does improve.
1.2.3    Although Testing Suspension remains in place, reasonable minimum liquidity requirement shall apply, if the Company has no liquidity covenant in place, minimum liquidity covenants for Debt Deferral Extension shall be introduced (however, aligned with any relevant liquidity covenants included in other financings)

1.3    ECA Premium, Interest and Fees:

1.3.1    Additional upfront/one-off ECA premium on New Debt Deferral Tranche Payments ("Additional ECA Premium") shall apply.
1.3.2    Additional ECA Premium shall be calculated by each ECAs based on its evaluation of the Debt


2



DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS


Holiday request.
1.3.3    Additional ECA Premium shall be due and payable at signing of the Debt Deferral Extension. The Additional ECA Premium is not refundable.
1.3.4    The Company shall bear any incurred adjustment on funding cost (CIRR and/or bank funding) for New Debt Deferral Tranche (for New Deferred Payments).
1.3.5    The Company shall agree on reasonable upfront and coordination fees, due and payable at signing of Debt Deferral Extension. A fee of the same amount than the one payable to the lenders may also be payable to the ECA, if the ECA so requests.
1.3.6    The Company shall bear any incurred legal and administrative cost to implement New Deferred Payments including but not limited to CIRR agreements.
1.3.7    In case there are several financings supported by different ECAs, the Company shall apply for the Debt Deferral Extension to all the ECAs. However, if the consent of the ECA lenders for one or more of these ECA financings is not obtained (due to the refusal of the ECA lenders of said financing), that should not prevent the Debt Deferral Extension to be implemented for the other ECA financings

2.    Undertakings
2.1    All conditions and undertakings of the Existing Debt Deferral shall remain in place, especially:
(i)    dividend restriction,
(ii)    mandatory redemption events,
(iii)    information covenant and monitoring
(iv)    specific ECA’s requirements (including, but not limited to, environmental covenant).

2.2    In particular, additional covenants will be added in the Debt Deferral Extension including but not limited to:

(i)    Any dividend payment, any share buy-back program or any other distribution or payment to share capital or shareholders (including repayment of shareholder loans), and/or
(ii)    new financing granted by the Company [(including inter-company loans)], and/or
(iii)    any non-arm length disposal of asset and/or
(iv)    any additional security in favour of existing debts (unless the ECA lenders benefit from this new security on a pari passu basis), and/or
(v)    any new regular debt or equity issue (such as bond or new equity emission) or other form of indebtedness by the Company
(vi)    any debt deferral or covenant waivers of existing debts, or any new debt raising intended to reimburse existing debt that benefit from additional securities or more favourable terms on existing security packages (unless they are granted to ECA lender on a pari passu basis),

shall trigger mandatory prepayment, to be made through an hard prepayment in a lump sum of any outstanding amount under the New Debt Deferral Tranche and immediate cessation of Testing Suspension, in any case subject to the provisions below.

2.3    Utilisation of the New Tranche shall be subject to proof of evidence of sufficient crisis-related liquidity measures by the Company, including equity, which shall be documented in the application process based on the Information Package (see paragraph 3.4. below).

2.4    During and until the end of the New Debt Deferral Tranche, the mandatory prepayment provision and the cessation of the Testing Suspension will not apply in relation to:

(i)    debt issuances by the Company due to financing of any scheduled ship building contract instalments, including, but not limited to, final instalment at delivery;
(ii)    (i) crisis and recovery related debt provided either (a) on unsecured basis and in accordance within the limitation provided under the documentation or (b) on secured basis if so requested

3



DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS


by a State supported arrangement and in any case within the limitation provided under the documentation or
(ii)    equity issuances by the Company
in both cases (i) and (ii) made until 31 December 2021;

(iii)    after 31 December 2021, crisis and recovery related debt or equity issuances by the Company made with the prior written consent of the ECA;
(iv)    extension (or renewal of) revolving credit facilities, with the prior consent of the ECA if any additional security shall be granted on this occasion.

2.5    Additional redemption mechanism

ECAs shall have the right to request mandatory redemption of Existing and New Deferred Payments if the Company wishes to redeem other commercial lenders and/or bondholders early (pari passu redemption). For the avoidance of doubt, the refinancing of debt or mandatory prepayments necessary to avoid an event of default ECAs will not request a pari passu redemption. Voluntary prepayment and/or cash sweep shall trigger a mandatory prepayment and drawstop of the Existing and New Debt Deferral Tranches, unless those are applied across the ECAS facilities under the New Debt Deferral Tranches.

2.6    Additional security

1.    The Company shall grant additional security or credit enhancements to ECA lenders (and consequently to the ECA) to be negotiated in good faith, if so requested by the ECAS. Without prejudice to paragraph 3.6(b) below with respect to new ECA financings, it is the ECAs firm understanding that additional securities will have to be provided on a pari passu basis to all the involved ECAs for any of the existing loan agreements.
2.    Additional Security may be requested by each and every ECA at their own sole discretion, in case such ECA is requested by the Company to support a new ECA financing in relation to any scheduled or new ship building contract, including the financing of new change orders and/or owner’s supplies.

2.7    Early Termination of New and Existing Debt Deferrals

If the Company and/or the obligors enters all-creditor and/or formal debt restructuring proceedings including but not limited to US Chapter 11 proceedings, all Deferred Payments of the Existing and the New Debt Deferral Tranche shall be void [or not effective] and the Company shall reimburse the ECAs financings according to original repayment schedule. For the avoidance of doubt, all sums deferred shall be immediately repaid and undrawn amounts under the Existing and New Debt Deferral Tranches shall be subject of a draw stop.


3.    Procedure for Debt Deferral Extension application

3.1    Each cruise operator ("Company" or the “Borrower” or the “Obligor”) may apply through its ECA- Agent bank, for the Debt Deferral Extension with each ECA for all its disbursed and undisbursed ECA-backed existing export financings. In one application, several financings can be bundled. Each Company shall apply Debt Deferral Extension also with CIRR Mandatory for all its disbursed ECA-backed CIRR export financings in an application via the respective CIRR-Agent bank.

3.2    The Facility Agent in coordination with ECA- and CIRR-Agent shall coordinate Lenders' consent immediately after Company launched application for Debt Deferral Extension. For the avoidance of doubt, ECA- and CIRR-approval shall be decided in a timely fashion based on prior ECA
4



DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS


coordination.

3.3    Similar to Debt Deferral Application in Q2 2020 Company shall provide an updated information package as may be required by the relevant ECA based on its standardized template as described in the Annex.

3.4    The Borrower/Company/Obligor shall provide the following information:
(i)    Treatment of other (new) creditors during Debt Holiday 1.0
(ii)    Overview of already collected crisis liquidity
(iii)    Overview of already concluded and further planned equity measures

(iv)    Overview of any debt deferral already negotiated/agreed with other creditors as of the date of application for the Debt Deferral Extension and description of the steps which the Borrower/Company/Obligor intends to take in order to agree any additional debt deferral with other creditors, alongside the Debt Deferral Extension.
(v)    [Detailed information in relation to any security or additional security granted in favour of any class of creditors (lenders/financiers, bondholders or other relevant creditors) which has been created or agreed as of the date of application for the Debt Deferral Extension]
(vi)    [Exhaustive and detailed description of any financial covenant which has been included within the terms and conditions of any debt issuance carried out within [1 February 2020] and the date of application for the Debt Deferral Extension and/or included in financing agreement in place as of the same date]

(vii)    Detailed information of future repayment obligations over the repayment tenor of the Debt Deferral Extension.
(viii)    Presentation of previous and future measures to secure the situation of shipyards and their order books
(ix)    Status of the Application with other ECAs
(x)    Rough estimate of the Company’s economic contribution to the ECAs’ respective economic systems.
(xi)    Detailed cash flow projections (Management Base Case and Management Stress Case) to illustrate the positive impact of the Debt Deferral Extension (at least 5 years projection) plus additional stress case scenarios, if requested by the respective ECAs, including cases with no substantial and cash generating operations prior to 01.06.2021 and 01.10.2021. Projections shall demonstrate the ability of the Applicant to meet its payment obligations towards its creditors until the end of the New Debt Deferral Tranche repayment period.
(xii)    Agreed repayment schedule of New Debt Deferral Tranche for all affected financings.

3.5    The Company and any of the Insured Banks shall also provide information regarding their commercial exposure and the arrangements taken (or under negotiation) towards this Applicant’s commercial exposure.

3.6    The Application should also cover:
(a)    a declaration of the Company to use its best efforts to:
1.    enter into similar agreements or arrangements with other class of its creditors; and to
2.    finalize agreement which won’t put in jeopardy the ECAS position or the shipyard and
(b)    a confirmation that the application is sent to all the ECAs involved at once.

5



DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS


Please refer to the Annex for the comprehensive list of information and monitoring process to be implemented.






































6


Annex B
Debt Deferral Extension Regular Monitoring Requirements

Debt Deferral Extension - Regular Monitoring Requirements
Monitoring Period:
-    Starting point: approval
-    End: the expiry of the Financial Covenant Waiver Period, whereby the list of documents and frequency shall be reviewed and adjusted annually by the Facility Agent.
Rhythm Description
1. monthly
Reporting of the:
1.    Total Free Liquidity Position – def.: free cash + free undrawn credit lines;
2.    Free Net Liquidity Position – Total Free Liquidity Position minus all planned debt repayments
(bank loan, commercial papers, bonds) which are due within the following 6 months.;
3.    In case the Free Net Liquidity Position does decease to 6x the average of the monthly operational cash burn rate the ECA can decide on its own discretion whether a shorter reporting rhythm shall be implemented (e.g. weekly).;
4.    Description of additional measures implemented to increase the liquidity position (debt, mezzanine and equity measures) / Whereby details of the respective terms and conditions shall be included (e.g. securities, ranking), for easy reference an ongoing list would be preferred with (a) measures taken, (b) additional measures finalized in the respective month and (c) additional measures planned.;
5.    Description of of additional cost cutting measures implemented to reduce the outflow of liquidity (OPEX, CAPEX, Debt Deferrals etc.);
6.    Repayment or refinancing of existing debt
 


2. monthly
Cash Flow Projection of the cruise line on a monthly basis
The Projection means cash flow statements in excel format, complete with formulas, shall cover the following period:
1.    Actual figures: The current financial year (whereby at least 1 quarter with actual historical figures have to be included);
2.    Projection: At least the following 24 months starting from the respective current month
(including shut down period and recovery phase)
Cash Flow Projection showing:
1.    operating cash flow including and separately listed Cruise-Revenues (including but not limited to occupancy rate, ticket prices, capacity of the overall fleet, capacity of fleet in operation), Cruise-OPEX, other COGS, net customer deposits collection (providing details of deposit refund separately), working capital and SG&A;
2.    cash flow from investing activities (separately: detailing capex in vessels, general capex and disposals / In addition for information purposes the newbuilding capex which will be paid out of equity.),
3.    cash flow from financing activities (detailing proceeds from equity, proceeds from debt separated by type of funding and ECA facilities, debt repayments separately), etc.
4.    Interest expenses
Such Cash Flow Projection shall be accompanied by a descriptive Note of Assumptions which does include comments on:
1. Changes:
(i)    The main changes to the underlying assumptions with respect to revenue / cash collections and disbursement of operational costs and SG&A,
(ii)    The main changes to the underlying assumptions with respect to Debt Deferrals (with the ECA backed transactions or other class of creditors)

(iii) The main changes with respect to Major Capex (and such Equity payments in relation to Major Capex)
And in each case whether those changes are due to timing issues or more fundamental changes compared to the initial Test Scheme Template for the Debt Deferral Extension (if not previously disclosed), or the previous Liquidity Forecast.
2. Mitigants or additional liquidity measure that are incorporated in the Liquidity Forecast, or planned but not yet incorporated in the Liquidity Forecast.
 
3. monthly Testing of the applicable Minimum Liquidity Covenant according to the amended loan documentation
4. monthly
1.    Cash Burn Rate
2.    Cash Burn Rate adjusted to net deposits collection
3.    Net Liquidity position to Cash Burn rate
Def. Cash Burn rate means operating costs plus debt service plus capital expenditure (net of financing) Def. Cash Burn rate adjusted means operating costs plus debt service plus capital expenditure (net of financing) plus net deposits collection.
To be reported as long as the company achieves a positive (adj.) EBITDA after interest costs in two consecutive months


5. monthly
Booking Curve - Average ticket price and occupancy for the season 2021 and season 2022 including a comparison of both parameters at the same point in time for bookings in 2019 for the season 2020
Format tbd with the ECA Agent / Figures to be provided in table / split by quarter mandatory
6. monthly
Status of the fleet on a per vessel basis: Active vessels (+ occupancy level) / Vessels in layup / Vessels classified for sale
Fleet wide average of occupancy (incl. active and idle vessels)
7. monthly
Confirmation that no dividends have been declared / paid within the current month.
8. monthly
Development of the customer deposits:
1.    For cancelled cruises with starting dates in the past: Percentage of customers which requested a refund and percentage of those who re-booked or accepted a voucher.
2.    Overview of the amount of deposits which have been collected in connection with cruises in the next 4 quarters (split by quarter).
3.    Customer Deposits for cruises starting within the next 3 months
4.    Amount of collected deposits which are at risk to be refunded, based on the company’s own assumption of how many passengers of future cancelled cruises might choose a refund instead of a re-booking or a voucher.
 
9. monthly
Other Creditors and Debtors:
5.    Please state clearly whenever terms and conditions (amount, interest, tenor, maturity schedule and securities) of existing credit facilities (incl. other debt holiday agreements) have been amended which fall into the same class as the ECAs or other classes.
6.    How are generally unsecured and secured financings treated?
7.    How do the debtors (like credit card companies) currently act? Do creditors withhold payments?
8.    Other Creditors and Debtors: What is the company asking from the other creditors (e.g. Bondholder, LeaseCos, FactorCos etc.) and what is their response? Do the respective documentation include cross default clauses?
10
bi-
monthly
Update about the changes of signed building contracts
The ECA shall be updated about the company`s current plans to amend any building contract or about any upcoming negotiations with the national yard.
11
quarterly
Unaudited financial statements or management accounts (incl. P&L (incl. EBITDA), balance sheet and cash flow statement)
12
quarterly
Company shall provide the calculation of the financial covenants which currently are waived.






Annex C
Replacement covenants with effect from the Guarantee Release Date





Exhibit N
Replacement covenants with effect from the Guarantee Release Date


It is acknowledged and agreed, with effect from the Guarantee Release Date, this Agreement shall be amended as follows:

“incur” means to create, incur, assume, guarantee or otherwise become directly or indirectly liable and “incurred” or “incurrence” shall have a correlative meaning.

“Inherited Indebtedness” means any Indebtedness (other than any Indebtedness that would, following the acquisition or creation of the relevant Subsidiary, become Permitted Principal Subsidiary Indebtedness or Permitted Non-Principal Subsidiary Indebtedness) of any corporation that becomes a Subsidiary of the Borrower after the Guarantee Release 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 Indebtedness is in existence at the time such corporation becomes a Subsidiary of the Borrower and was not incurred by the Borrower or any of its Subsidiaries in anticipation thereof.

“Inherited Lien” means any Lien (other than a Lien that would, following the acquisition or creation of the relevant Subsidiary, become a Permitted Lien) in respect of any Inherited Indebtedness on any asset of any corporation that becomes a Subsidiary of the Borrower after the Guarantee Release 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.

“Non-Principal Subsidiary” means a Subsidiary other than a Principal Subsidiary.

“Permitted Principal Subsidiary Indebtedness” means:

a.    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower; and
b.    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes.
“Permitted Liens” means:

a.    Liens securing Government-related Obligations;
1

b.    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;
c.    Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue by more than 60 days or being diligently contested in good faith by appropriate proceedings;
d.    Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance or other forms of governmental insurance or benefits;
e.    Liens for current crew's wages and salvage;
f.    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;
g.    Liens on Vessels that:
(i)    secure obligations covered (or reasonably expected to be covered) by insurance;
(ii)    were incurred in the course of or incidental to trading such Vessel in connection with repairs or other work to such Vessel; or
(iii)    were incurred in connection with work to such Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;
provided that, in each case described in this clause (g), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;
h.    normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers' liens, rights of set-off or similar rights in favour of banks or other depository institutions;
i.    Liens in respect of rights of set-off, recoupment and holdback in favour of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business;
j.    Liens on cash or Cash Equivalents or marketable securities securing:
(i)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; or
2


(ii)    letters of credit that support such obligations;
k.    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
l.    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
m.    licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
n.    Liens on any property of Silversea identified in Section 2 of Exhibit F hereto,


“Permitted Non-Principal Subsidiary Indebtedness” means:

a.    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower;
b.    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; and
c.    other Indebtedness other than Indebtedness for borrowed money (it being agreed for this purpose that any Group Member Guarantee granted in connection with Indebtedness for borrowed money shall be considered to be Indebtedness for borrowed money).



3



1.    Sections 7.2.2 and 7.2.3 shall be deleted in their entirety and replaced with the following (and all other provisions and clause references shall be construed accordingly):
SECTION 7.2.2    Subsidiary Indebtedness and Liens.
(a)    With effect from the Guarantee Release Date and except to the extent permitted by Section 7.2.2(b) below:
(i)    the Borrower will not permit:
A.    any of its Principal Subsidiaries to incur any Indebtedness other than Permitted Principal Subsidiary Indebtedness; and
B.    any of its Non-Principal Subsidiaries to incur any Indebtedness other than Permitted Non-Principal Subsidiary Indebtedness; and
(ii)     the Borrower (having regard, in the case of any ECA Financed Vessel, to Section 7.2.10) will not, and will not permit any of its Subsidiaries to, permit to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired other than Permitted Liens.
(b)    Section 7.2.2(a) shall not, however, prohibit any Indebtedness or Lien provided that (but again having regard, in the case of any ECA Financed Vessel, to Section 7.2.10) immediately following the incurrence (including any Group Member Guarantees) of the Indebtedness or Lien (as applicable):
(i)    the sum of the aggregate principal amount (without duplication) of (x) Indebtedness incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness), (y) Indebtedness incurred by Non-Principal Subsidiaries (excluding Permitted Non-Principal Subsidiary Indebtedness) and (z) the Indebtedness secured by Liens (other than Permitted Liens) granted by any Group Member does not exceed 20.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
(ii)    in the event the Senior Debt Rating of the Borrower is at Investment Grade as given by either Moody’s and S&P (determined at the time of the incurrence of the Indebtedness or Lien), the sum of the aggregate principal amount (without duplication) of (x) Indebtedness incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness) and (y) the Indebtedness secured by Liens (excluding Permitted Liens) granted by any Group Member does not exceed 10.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
4


(iii)     in the event the Senior Debt Rating of the Borrower is below Investment Grade as given by both Moody’s and S&P (determined at the time of creation of the Lien or the granting of a Group Member Guarantee (as applicable)):
A.    the aggregate principal amount of Indebtedness secured by first priority Liens (excluding Permitted Liens) granted by any Group Member does not exceed 5% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
B.    the aggregate principal amount of Indebtedness secured by second (or lower) priority Liens (excluding Permitted Liens) granted by any Group Member does not exceed 5% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; and
C.    the sum of the aggregate principal amount (without duplication) of (x) Indebtedness (including any Group Member Guarantees) incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness) and (y) Indebtedness secured by Liens (excluding Permitted Liens) granted by any Group Member pursuant to (iii)(A) and (B) above does not exceed 10.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter,
provided that if, following the Guarantee Release Date, the Borrower enters into a transaction which results in the existence of any Inherited Lien or Inherited Indebtedness, and solely as a result of that Inherited Lien (and the related Inherited Indebtedness secured by that Inherited Lien) or Inherited Indebtedness, the thresholds referred to in this paragraph (b) are exceeded, whilst no breach of this clause shall be deemed to have occurred at the time of such transaction, no further Indebtedness or Liens of the type referred to in this paragraph (b) shall be permitted to be incurred or, as the case may, permitted to exist until such time as the Borrower is in compliance with the thresholds referred to above (and taking into account for such purpose any unsecured Inherited Indebtedness or Inherited Indebtedness secured by any Inherited Lien).
2.    Section 7.2.3 shall be deleted in its entirety and replaced with “Intentionally Omitted”.

3.    A new Section 7.2.10 shall be inserted as follows:

SECTION 7.2.10    Negative Pledge Over ECA Financed Vessels.
For the purposes of this Section 7.2.10:
5


“repaid” means scheduled repayments or voluntary or mandatory prepayment and not repayments arising following the acceleration of the relevant ECA Financing after the occurrence of an Event of Default; and
“credit support” means a Lien over any ECA Financed Vessel granted by any Group Member or a Group Member Guarantee from a Group Member (other than the Borrower) that owns (directly or indirectly) any ECA Financed Vessel.
In connection with the granting of any Lien or Group Member Guarantee pursuant to Section 7.2.2(b) above, no Group Member shall use any ECA Financed Vessel as credit support in respect of any Indebtedness except:
(i)    if more than 75.0% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel has been repaid by the relevant Group Member, that Group Member shall be entitled to grant credit support over or in respect of that ECA Financed Vessel on the basis, and in compliance with the terms of, Section 7.2.2(b); and
(ii)    if an amount equal to or higher than 15.0% but less than or equal to 75% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel has been repaid by the relevant Group Member (determined at the time the relevant credit support is provided), the relevant Group Member shall be entitled to provide such credit support over that ECA Financed Vessel on the basis of, and subject to the compliance with, the terms of, Section 7.2.2(b), provided that the amount of Indebtedness secured or supported (as applicable) by that credit support shall not exceed an amount equal to FV x (A / B) where:
FV = the fair value of that ECA Financed Vessel at the time of the provision of that credit support (as evidenced by the information to be provided pursuant to sub-paragraph (v) below);
A = the aggregate principal amount of Indebtedness incurred under the ECA Financing in respect of that ECA Financed Vessel which has been repaid by the relevant Group Member at the time the credit support is provided; and
B = the amount of Indebtedness originally incurred by the relevant Group Member under the ECA Financing in respect of that ECA Financed Vessel,
it being acknowledged and agreed that:
(iii)    where the relevant credit support being provided in accordance with this Section 7.2.10 is a Group Member Guarantee from a Group Member that owns (directly or indirectly) one or more ECA Financed Vessels but does not own (directly or indirectly) any other Vessels, the amount of Indebtedness that can be
6


supported by such Group Member Guarantee shall be equal to the aggregate amount of Indebtedness that would be permitted to be secured under this Section 7.2.10 if, instead of a Group Member Guarantee, each relevant Principal Subsidiary owning each relevant ECA Financed Vessel was to provide a Lien as credit support in respect of that Indebtedness;
(iv)     where the relevant credit support being provided in accordance with this Section 7.2.10 is a Group Member Guarantee from a Group Member that owns (directly or indirectly) one or more ECA Financed Vessels and other Vessels, the restrictions contained in this Section 7.2.10 as to the amount of the Indebtedness that can be supported by such credit support must be preserved at all times and, not later than five Business Days after the date upon which that Group Member grants the relevant Group Member Guarantee, the Borrower shall notify the Facility Agent in writing of such event and shall provide any information as may be reasonably requested by the Facility Agent to verify that the requirements of this Section 7.2.10 have been complied with following the provision of such Group Member Guarantee; and
(v)    not later than five Business Days after the date upon which a Group Member provides any credit support, the Borrower shall provide the Facility Agent with evidence as to its compliance with this Section 7.2.10, which evidence shall include all required calculations and other information required by the Facility Agent (acting reasonably) to determine such compliance; and
(vi)    no Group Member shall be entitled to use any ECA Financed Vessel as credit support in the manner contemplated by this Section 7.2.10:
(A)    until such time as the relevant Group Member has repaid at least 15.0% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel; and/or
(B)    at any time in which a Default has occurred and is continuing.

7



SIGNATORIES
Amendment Agreement in respect of Hull L34
Existing Borrower
SIGNED by Jacobus Pietersen, Director
for and on behalf of
HOEDISCUS FINANCE LIMITED
)
)
) 		/s/ Jacobus Pietersen
)
New Borrower
SIGNED by Antje M. Gibson, VP & Treasurer
for and on behalf of
ROYAL CARIBBEAN CRUISES LTD.
)
)
) 		/s/ Antje M. Gibson
)
Facility Agent
SIGNED by Claire Crawford
for and on behalf of
CITIBANK EUROPE PLC, UK BRANCH
)
)
) 		/s/ Claire Crawford
)
Security Trustee
SIGNED by Cristina Volc, Attorney
for and on behalf of
CITICORP TRUSTEE COMPANY LIMITED
)
)
)
/s/ Cristina Volc
)

Global Coordinator
SIGNED by David Graham, Director
for and on behalf of
CITIBANK N.A., LONDON BRANCH
)
)
) 		/s/ David Graham
)
The ECA Agent
SIGNED by Hervé Billi
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
) 		/s/ Hervé Billi
)




French Coordinating Bank
SIGNED by Julie Bellais / Guy Woelfel
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ Guy Woelfel
The Lenders
SIGNED by Julie Bellais / Guy Woelfel
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ Guy Woelfel
SIGNED by Caroline Pantaleao / Pierre Roserot de Melin
for and on behalf of
BANCO SANTANDER S.A., PARIS BRANCH
)
)
)
)
/s/ Caroline Pantaleao
) /s/ Pierre Roserot de Melin
SIGNED by Alexandre de Vathaire, Export Finance-Origination EMEA-Managing Director France & UK / Georges Curey, Export Finance, Head of Transaction and CPM Teams EMEA
for and on behalf of
BNP PARIBAS
)
)
)
)
)
)
/s/ Alexandre de Vathaire
) /s/ Georges Curey
SIGNED by Alpa Shah / Masao Yokoyama
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
)
) 		/s/ Alpa Shah
) /s/ Masao Yokoyama
SIGNED by Valerie Mace
for and on behalf of
SOCIÉTÉ GÉNÉRALE
)
)
) 		/s/ Valerie Mace
)
SIGNED by PM Debreuille, Dírecteur Crédit Export / Emilie Boissier, Direction Crédit Export
for and on behalf of
SFIL
)
)
)
)
/s/ PM Debreuille
) /s/ Emilie Boissier
The Mandated Lead Arrangers


SIGNED by David Graham, Director
for and on behalf of
CITIBANK N.A., LONDON BRANCH
)
)
) 		/s/ David Graham
)
SIGNED by Julie Bellais / Guy Woelfel
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ Guy Woelfel
SIGNED by Caroline Pantaleao / Pierre Roserot de Melin
for and on behalf of
BANCO SANTANDER S.A., PARIS BRANCH
)
)
)
)
/s/ Caroline Pantaleao
) /s/ Pierre Roserot de Melin
SIGNED by Alexandre de Vathaire, Export Finance-Origination EMEA-Managing Director France & UK / Georges Curey, Export Finance, Head of Transaction and CPM Teams EMEA
for and on behalf of
BNP PARIBAS
)
)
)
)
)
)
/s/ Alexandre de Vathaire
) /s/ Georges Curey
SIGNED by Alpa Shah / Masao Yokoyama
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
)
)
) 		/s/ Alpa Shah
) /s/ Masao Yokoyama
SIGNED by Valerie Mace
for and on behalf of
SOCIÉTÉ GÉNÉRALE
)
)
) 		/s/ Valerie Mace
)




Exhibit 10.3
Dated 12 July 2021
HOUATORRIS FINANCE LIMITED
as Existing Borrower
ROYAL CARIBBEAN CRUISES LTD.
as New Borrower
CITIBANK EUROPE PLC, UK BRANCH
as Facility Agent
CITICORP TRUSTEE COMPANY LIMITED
as Security Trustee
CITIBANK N.A., LONDON BRANCH
as Global Coordinator
HSBC CONTINENTAL EUROPE
as French Coordinating Bank
SMBC BANK INTERNATIONAL PLC
as ECA Agent
CITIBANK N.A., LONDON BRANCH, BANCO SANTANDER S.A., PARIS BRANCH, BNP PARIBAS, HSBC CONTINENTAL EUROPE , SOCIETE GENERALE
and
SMBC BANK INTERNATIONAL PLC
as Mandated Lead Arrangers
AND
THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1
as Lenders
Amendment Agreement in connection with
the Credit Agreement in respect of
Hull No. M34 at Chantiers de l’Atlantique S.A.


Contents
Clause    Page
1    Interpretation and definitions
2
2    Amendment of the Novation Agreement
3
3    Conditions of effectiveness
3
4    Representations and Warranties
5
5    Incorporation of Terms
6
6    Fees, Costs and Expenses
6
7    Counterparts
6
8    Governing Law
7
Schedule 1 Lenders
8
Schedule 2 Form of Amendment Effective Date confirmation – Hull M34
9
Schedule 3 Form of Amended and Restated Novated Credit Agreement
10
Annex A Framework
11
Annex B Debt Deferral Extension Regular Monitoring Requirements
12
Annex C Replacement covenants with effect from the Guarantee Release Date
16



THIS AMENDMENT AGREEMENT (this Amendment) is dated 12 July 2021 and made BETWEEN:
(1)
HOUATORRIS FINANCE LIMITED as transferor (the Existing Borrower);
(2)
ROYAL CARIBBEAN CRUISES LTD. as transferee (the New Borrower);
(3)
CITIBANK EUROPE PLC, UK BRANCH as facility agent for the other Finance Parties (the Facility Agent);
(4)
CITICORP TRUSTEE COMPANY LIMITED as security trustee for itself and the other Finance Parties (the Security Trustee);
(5)
CITIBANK N.A. LONDON BRANCH as global coordinator (the Global Coordinator);
(6)
HSBC CONTINENTAL EUROPE (previously known as HSBC France) as French coordinating bank (the French Coordinating Bank);
(7)
SMBC BANK INTERNATIONAL PLC (previously known as Sumitomo Mitsui Banking Corporation Europe limited, Paris Branch) as ECA agent (the ECA Agent);
(8)
CITIBANK N.A., LONDON BRANCH, HSBC CONTINENTAL EUROPE (previously known as HSBC France), BANCO SANTANDER S.A., PARIS BRANCH, BNP PARIBAS, SOCIÉTÉ GÉNÉRALE and SMBC BANK INTERNATIONAL PLC as Mandated Lead Arrangers; and
(9)
THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders.
WHEREAS:
(A)    Reference is made to the facility agreement dated 24 July 2017 (as supplemented, amended and restated from time to time, the Facility Agreement) and made between (1) the Existing Borrower as borrower, (2) the banks and financial institutions named therein as original lenders, (3) the Mandated Lead Arrangers as mandated lead arrangers, (4) the Facility Agent as facility agent, (5) the Security Trustee as security trustee (6) the Global Coordinator as global coordinator, (7) the French Coordinating Bank as French coordinating bank and (8) the ECA Agent as ECA agent, pursuant to which the Lenders have agreed to make available a loan of up to €630,622,480 to the Existing Borrower in connection with the purchase by the Existing Borrower of the Receivable from the Seller pursuant to the Receivable Purchase Agreement.
(B)    This Amendment is supplemental to the novation agreement dated 24 July 2017 (as supplemented, amended and restated from time to time, the Novation Agreement) in respect of the financing of the acquisition of the Vessel pursuant to the Facility Agreement and made between, amongst others, (1) the Existing Borrower as the existing borrower, (2) the New Borrower as the new borrower, (3) the banks and financial institutions named therein as original lenders, (4) the Mandated Lead Arrangers as mandated lead arrangers, (5) the Facility Agent as facility agent, (6) the Security Trustee as security trustee, (7) the Global Coordinator as global coordinator, (8) the French Coordinating Bank as French coordinating bank and (9) SMBC Bank International plc as ECA agent.
(C)    The New Borrower has requested that the form of Novated Credit Agreement scheduled to the Novation Agreement (as such Novated Credit Agreement was previously amended and restated pursuant to the Third Novation Agreement Supplement) be amended and restated on the basis set out in this Amendment in order to reflect the Debt Deferral Extension Framework published by certain Export Credit Agencies (including BpiFAE) (the Framework).
    Page 1

(D)    The Parties have agreed to amend the Novation Agreement, and amend and restate the form of Novated Credit Agreement attached to the Novation Agreement, on the basis set out in this Amendment.

NOW IT IS AGREED as follows:
1    Interpretation and definitions
1.1    Definitions in the Facility Agreement and the Novation Agreement
(a)    Unless the context otherwise requires or unless otherwise defined in this Amendment, words and expressions defined in the Novation Agreement or the Facility Agreement shall have the same meanings when used in this Amendment (including in the recitals).
(b)    The principles of construction set out in clause 1.3 of the Novation Agreement shall have effect as if set out in this Amendment.
1.2    Definitions
In this Amendment:
Amendment Effective Date means the date specified as such in the certificate signed by the Facility Agent in accordance with clause 3.2.
ECA Financing has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Financial Covenant Waiver Period has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Framework Information Package means the general test scheme/information package in connection with the "Debt Deferral Extension" application submitted by the New Borrower in order to obtain the benefit of the measures provided for in the Framework for the purpose of this Amendment and certain of the New Borrower’s obligations to be assumed under the replacement Novated Credit Agreement.
Loan Documents has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Party means each of the parties to this Amendment.
Third Novation Agreement Supplement means the supplemental agreement to the Novation Agreement dated 13 November 2020, entered into between the parties to the Novation Agreement and pursuant to which the Novation Agreement was amended in order to, amongst other things, replace the form of Novated Credit Agreement attached thereto.
1.3    Third party rights
Other than BpiFAE in respect of the rights of BpiFAE under the Finance Document and the Loan Documents, unless expressly provided to the contrary in a Finance Document or a Loan Document, no term of this Amendment is enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.
1.4    Designation
Each of the Parties designates this Amendment as a Loan Document for the purposes of the replacement Novated Credit Agreement and a Finance Document for the purposes of the Facility Agreement.
    Page 2

1.5    Security Trustee
Each of the parties acknowledges that the Security Trustee is entering into this Amendment on the irrevocable and unconditional instructions of the Facility Agent and the Security Trustee shall have all of the rights, powers and protections conferred on it under the Finance Documents hereunder.
2    Amendment of the Novation Agreement
2.1    In consideration of the mutual covenants in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree that, subject to the satisfaction of the conditions precedent set forth in clause 3:
(a)    the form of the Novated Credit Agreement (but without all its Exhibits which shall, unless otherwise amended and restated pursuant to paragraph (b) below, remain in the same form and continue to form part of the Novated Credit Agreement) set out in Schedule 3 of the Novation Agreement shall be (and it is hereby) amended and restated so as to read in accordance with the form of the amended and restated Novated Credit Agreement set out in Schedule 3; and
(b)    Annex A to Annex C hereto shall be attached to the form of the Novated Credit Agreement as new Exhibit L to Exhibit N thereto.
2.2    It is acknowledged and agreed that as a result of the amendment and restatement of the Novated Credit Agreement pursuant to this Amendment, clause 2.1(b) of the Third Novation Agreement Supplement shall no longer apply and accordingly the form of the replacement Novated Credit Agreement attached to the Third Novation Agreement Supplement shall be disregarded. All other provisions of the Third Novation Agreement Supplement shall continue in full force and effect.
3    Conditions of effectiveness
3.1    The agreement of the Parties referred to in clause 2 shall be subject to each of the following conditions being satisfied to the reasonable satisfaction of the Facility Agent:
(a)    the Facility Agent shall have received from the New Borrower:
(i)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Amendment and as to the truth and completeness of the attached resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Amendment, and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the New Borrower cancelling or amending such prior certificate; and
(ii)    a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the New Borrower;
(b)    the Facility Agent shall have received from the Existing Borrower:
(i)    a certificate from an authorised officer of the Existing Borrower, confirming that there have been no changes or amendments to its constitutional documents, certified copies of which were previously delivered to the Facility Agent pursuant to the Facility Agreement, or attaching revised versions in case of any changes or amendments; and
(ii)    a copy, certified by an authorised officer of the Existing Borrower, of (A) resolutions of its board of directors approving the transactions contemplated by this Amendment and authorising a person or persons to execute this Amendment and any notices or other documents to be given pursuant hereto and (B) any power of
    Page 3

attorney issued pursuant to such resolutions (which shall be certified as being in full force and effect and not revoked or withdrawn);

(c)    the Facility Agent shall have received evidence that all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent) required to be paid by the New Borrower pursuant to clause 6 below, and all other documented fees and expenses that the New Borrower has otherwise agreed in writing to pay to the Facility Agent, have been paid or will be paid promptly upon being demanded;
(d)    an amendment to the BpiFAE Insurance Policy duly signed and issued in respect of the arrangements referred to in this Amendment either (i) in an original with ‘wet-ink’ signature(s) or (ii) if the execution of an original of the BpiFAE Insurance Policy is not practicable at the relevant time (having regard to the logistical difficulties caused by COVID-19), electronically signed and initialled, together with written confirmation from BpiFAE that (A) such electronic signature is binding upon BpiFAE, (B) BpiFAE will send an original executed ‘wet-ink’ version of the BpiFAE Insurance Policy to the ECA Agent and the Facility Agent as soon as practicable (again, having regard to the logistical difficulties caused by COVID-19) and (C) such electronically signed BpiFAE Insurance Policy is valid and enforceable irrespective of whether the signed and regularized ‘wet-ink’ policy has at that time been produced and circulated, and in each case, BpiFAE shall not have, prior to the Effective Date, delivered to the Facility Agent or the ECA Agent any notice seeking the cancellation, suspension or termination of the BpiFAE Insurance Policy;
(e)    the Facility Agent shall have received opinions, addressed to the Facility Agent (and capable of being relied upon by each Lender) from:
(i)    Watson Farley & Williams LLP, counsel to the New Borrower, as to matters of Liberian law (and being issued in substantially the same form as the corresponding Liberian legal opinion issued in respect of the original Novation Agreement);
(ii)    Norton Rose Fulbright LLP, counsel to the Facility Agent as to matters of English law (and being issued in substantially the same form as the corresponding English legal opinion issued in respect of the Third Novation Agreement Supplement);
(iii)    Norton Rose Fulbright LLP, counsel to the Facility Agent as to matters relating to the conformity of the BpiFAE Insurance Policy issued by BpiFAE in accordance with paragraph (e) above with the arrangements relating to the Framework set out in this Amendment and the form of replacement Novated Credit Agreement; and
(iv)    Walkers, legal advisors appointed by the Facility Agent as to matters of Cayman Islands law in respect of the Existing Borrower (and being issued in substantially the same form as the corresponding Cayman legal opinion issued in respect of the Third Novation Agreement Supplement),
or, where applicable, a written approval in principle (which can be given by email) by any of the above counsel of the arrangements contemplated by this Amendment and a confirmation that a formal opinion will follow promptly after the Amendment Effective Date;

    Page 4

(f)    evidence that the New Borrower has submitted the Framework Information Package to BpiFAE (including information related to crisis-related liquidity measures) as a basis for BpiFAE to assess the adequacy of the New Borrower’s crisis-related liquidity measures;
(g)    the representations and warranties set out in clause 4 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a Material Adverse Effect (which shall be accurate in all respects)) as of the Amendment Effective Date;
(h)    no Event of Default shall have occurred and be continuing or would result from the amendment of the Novation Agreement pursuant to this Amendment;
(i)    the Existing Borrower and the New Borrower shall, as required pursuant to clause 5, have each provided a letter to the Facility Agent which confirms that the relevant process agent has accepted its appointment as process agent in respect of this Amendment;
(j)    the Facility Agent shall have received a letter from the New Borrower, signed by its Chief Financial Officer, containing a commitment to publish on an annual basis, a publicly available environmental plan that includes (i) an annual measure (in accordance with other public methodology, including IMO methodology) of the greenhouse gas emissions of the New Borrower and its Subsidiaries (including the emissions of their respective vessels) for the two years preceding the date of the relevant publication and (ii) the New Borrower’s strategy to reduce the group’s greenhouse emissions, including details of specific measures implemented (or to be implemented) in order to achieve such reduction;
(k)    the Facility Agent shall have received from the Existing Borrower and the New Borrower such documentation and information as any Finance Party may reasonably request through the Facility Agent to comply with "know your customer" or similar identification procedures under all laws and regulations applicable to that Finance Party; and
(l)    the Facility Agent shall have received evidence that, as required pursuant to clause 9.6(c) of the Receivable Purchase Agreement, the Seller has consented to the amendments to the Novation Agreement set out in this Amendment,
it being acknowledged and agreed by the Facility Agent that the conditions referred to in paragraphs ((f), (i), (k) and (l) above have, at the date of this Amendment, been satisfied.
3.2    The Facility Agent shall notify the Lenders, the Existing Borrower and the New Borrower of the Amendment Effective Date by way of a confirmation in the form set out in Schedule 2 and such confirmation shall be conclusive and binding.
4    Representations and Warranties
4.1    The Existing Borrower shall be deemed to repeat the representations and warranties in clause 7.1 of the Facility Agreement on the date of this Amendment and the Amendment Effective Date, in each case, as if made with reference to the facts and circumstances existing on such dates.
4.2    The New Borrower represents and warrants that each of the representations set out in Article VI of the form of the replacement Novated Credit Agreement (other than Section 6.10) set out in Schedule 3 are true and correct as if made at the date of this Amendment and at the Amendment Effective Date, in each case with reference to the facts and circumstances existing on such day, as if references to the Loan Documents include this Amendment and as if the replacement Novated Credit Agreement was effective at the time of each such repetition.
4.3    In addition to the representations and warranties referred to in clause 4.2 above, the New Borrower:
(a)    represents and warrants to the Facility Agent and each Lender that it is the New Borrower’s intention for the terms of this Amendment and the amendments to be
    Page 5

incorporated into the form of the amended and restated Novated Credit Agreement pursuant to this Amendment to be substantially the same terms and amendments as those set out or to be set out in an amendment agreement in respect of each other ECA Financing in existence as at the date of this Amendment;
(b)    covenants and undertakes with the Facility Agent that (to the extent it has not already done so) it shall, on or before the Amendment Effective Date, or as soon as reasonably practicable thereafter enter into an amendment agreement (with such amendments being on substantially the same terms as those set out in this Amendment and the form of the amended and restated Novated Credit Agreement (as applicable)) to the finance documents in respect of each other ECA Financing in existence as at the date of this Amendment in order to substantially reflect the amendments set out in the form of the Amended Novated Agreement provided, however, that this paragraph (b) shall not apply in respect of any other ECA Financing where the lenders under that ECA Financing do not provide their consent to such amendment agreement where the arrangements contemplated by that amendment were proposed to be on substantially the same basis as set out in this Amendment (subject to logical and factual changes),
save that such other amendments shall in each case incorporate changes to reflect (i) any factual differences, (ii) that certain of the other ECA Financings shall contain provisions providing for the deferral of principal repayments to be made by the New Borrower under those ECA Financings in accordance with the Framework and (iii) any particular requirements of an ECA Guarantor, under that relevant ECA Financing.
5    Incorporation of Terms
The provisions of clauses 13 (Miscellaneous and notices), 14.2 (Submission to jurisdiction) and 14.3 (Waiver of immunity) of the Novation Agreement shall be incorporated into this Amendment as if set out in full in this Amendment and as if (a) references to each Party are references to each Party to this Amendment and (b) references to ‘this Agreement’ include this Amendment.
6    Fees, Costs and Expenses
The New Borrower agrees to pay on demand, on an after-tax basis, all reasonable out-of-pocket costs and expenses in connection with:
(a)    the preparation, execution and delivery of; and
(b)    the administration, modification and amendment of,
this Amendment and all other documents to be delivered hereunder or thereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of Norton Rose Fulbright LLP as the legal adviser to the Lenders and the Facility Agent and the Security Trustee.
7    Counterparts
This Amendment may be executed in any number of counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original but all counterparts shall together constitute one and the same instrument. The Parties acknowledge and agree that they may execute this Amendment and any variation or amendment to the same, by electronic instrument. The Parties agree that the electronic signatures appearing on the document shall have the same effect as handwritten signatures and the use of an electronic signature on this Amendment shall have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating this Amendment, and evidencing the Parties’ intention to be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests including contract management.
    Page 6

8    Governing Law
This Amendment, and all non-contractual obligations arising in connection with it, shall be governed by and construed in accordance with English law.
The Parties have executed this Amendment the day and year first before written.
    Page 7

Schedule 1
Lenders
Banco Santander, S.A, Paris Branch
BNP Paribas
Citibank N.A., London Branch
HSBC Continental Europe
Société Générale
SMBC Bank International plc
SFIL



Schedule 2

[OMITTED]

    

Schedule 3
Form of Amended and Restated Novated Credit Agreement

    






_________________________________________
HULL NO. M34 CREDIT AGREEMENT
_________________________________________
dated 24 July 2017 as novated, amended and restated on the Actual Delivery Date pursuant to a novation agreement dated 24 July 2017 (as amended and restated by a first novation agreement supplement dated 12 March 2020, as amended by a second novation agreement supplement dated 29 August 2020, as further amended and restated by a third novation agreement supplement dated 13 November 2020 and as further amended and restated by a fourth novation agreement supplement dated 12 July 2021)
BETWEEN
Royal Caribbean Cruises Ltd.
as the Borrower,
the Lenders from time to time party hereto,
Citibank N.A., London Branch
as Global Coordinator
SMBC Bank International plc as ECA Agent
and
Citibank Europe plc, UK Branch as Facility Agent
and
Citibank N.A., London Branch, Banco Santander, S.A., Paris Branch, BNP Paribas, HSBC Continental Europe, Société Générale and SMBC Bank International plc as Mandated Lead Arrangers



TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS    2
SECTION 1.1.    Defined Terms    2
SECTION 1.2.    Use of Defined Terms    27
SECTION 1.3.    Cross-References    27
SECTION 1.4.    Accounting and Financial Determinations    27
ARTICLE II COMMITMENTS AND BORROWING PROCEDURES    28
SECTION 2.1.    Commitment    28
SECTION 2.2.    Commitment of the Lenders; Termination and Reduction of Commitments    28
SECTION 2.3.    Borrowing Procedure    29
SECTION 2.4.    Funding    31
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES    32
SECTION 3.1.    Repayments    32
SECTION 3.2.    Prepayment    32
SECTION 3.3.    Interest Provisions    33
SECTION 3.3.1    Rates    33
SECTION 3.3.2    [Intentionally omitted]    33
SECTION 3.3.3    Interest Stabilisation    33
SECTION 3.3.4    Post-Maturity Rates    34
SECTION 3.3.5    Payment Dates    34
SECTION 3.3.6    Interest Rate Determination; Replacement Reference Banks    34
SECTION 3.3.7    Unavailability of the LIBO Rate    34
SECTION 3.4.    Commitment Fees    36
SECTION 3.4.1    Payment    36
SECTION 3.5.    Other Fees    36
i



ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS    37
SECTION 4.1.    LIBO Rate Lending Unlawful    37
SECTION 4.2.    Deposits Unavailable    37
SECTION 4.3.    Increased LIBO Rate Loan Costs, etc.    38
SECTION 4.4.    Funding Losses    39
SECTION 4.4.1    Indemnity    39
SECTION 4.4.2    Exclusion    41
SECTION 4.5.    Increased Capital Costs    41
SECTION 4.6.    Taxes    42
SECTION 4.7.    Reserve Costs    44
SECTION 4.8.    Payments, Computations, etc.    44
SECTION 4.9.    Replacement Lenders, etc.    45
SECTION 4.10.    Sharing of Payments    46
SECTION 4.10.1    Payments to Lenders    46
SECTION 4.10.2    Redistribution of payments    46
SECTION 4.10.3    Recovering Lender’s rights    46
SECTION 4.10.4    Reversal of redistribution    46
SECTION 4.10.5    Exceptions    47
SECTION 4.11.    Set-off    47
SECTION 4.12.    Use of Proceeds    47
SECTION 4.13.    FATCA Information    47
SECTION 4.14.    Resignation of the Facility Agent    48
ARTICLE V CONDITIONS TO BORROWING    49
SECTION 5.1.    Advance of the Loan    49
SECTION 5.1.1    Resolutions, etc.    49
SECTION 5.1.2    Opinions of Counsel    49
SECTION 5.1.3    BpiFAE Insurance Policy    50
    viii


SECTION 5.1.4    Closing Fees, Expenses, etc.    50
SECTION 5.1.5    Compliance with Warranties, No Default, etc.    50
SECTION 5.1.6    Loan Request    50
SECTION 5.1.7    Foreign Exchange Counterparty Confirmations    51
SECTION 5.1.8    Protocol of delivery    51
SECTION 5.1.9    Title to Purchased Vessel    51
SECTION 5.1.10    Interest Stabilisation    51
SECTION 5.1.11    Escrow Account Security    52
ARTICLE VI REPRESENTATIONS AND WARRANTIES    52
SECTION 6.1.    Organization, etc.    52
SECTION 6.2.    Due Authorization, Non-Contravention, etc.    53
SECTION 6.3.    Government Approval, Regulation, etc.    53
SECTION 6.4.    Compliance with Environmental Laws    53
SECTION 6.5.    Validity, etc.    53
SECTION 6.6.    No Default, Event of Default or Prepayment Event    53
SECTION 6.7.    Litigation    53
SECTION 6.8.    The Purchased Vessel    54
SECTION 6.9.    Obligations rank pari passu; Liens    54
SECTION 6.10.    Withholding, etc.    54
SECTION 6.11.    No Filing, etc. Required    54
SECTION 6.12.    No Immunity    54
SECTION 6.13.    Investment Company Act    55
SECTION 6.14.    Regulation U    55
SECTION 6.15.    Accuracy of Information    55
SECTION 6.16.    Compliance with Laws    55
ARTICLE VII COVENANTS    56
SECTION 7.1.    Affirmative Covenants    56
    viii


SECTION 7.1.1    Financial Information, Reports, Notices, etc.    56
SECTION 7.1.2    Approvals and Other Consents    58
SECTION 7.1.3    Compliance with Laws, etc.    58
SECTION 7.1.4    The Purchased Vessel    59
SECTION 7.1.5    Insurance    60
SECTION 7.1.6    Books and Records    60
SECTION 7.1.7    BpiFAE Insurance Policy/French Authority Requirements    60
SECTION 7.1.8    Equal Treatment with Pari Passu Creditors    61
SECTION 7.1.9    Performance of shipbuilding contract obligations    61
SECTION 7.2.    Negative Covenants    62
SECTION 7.2.1    Business Activities    62
SECTION 7.2.2    Indebtedness    62
SECTION 7.2.3    Liens    63
SECTION 7.2.4    Financial Condition    65
SECTION 7.2.5    Additional Undertakings    66
SECTION 7.2.6    Consolidation, Merger, etc.    73
SECTION 7.2.7    Asset Dispositions, etc.    73
SECTION 7.2.8    Borrower’s Procurement Undertaking    73
SECTION 7.2.9    Framework Lien and Guarantee Restriction    74
SECTION 7.3.    Covenant Replacement    76
SECTION 7.4.    Lender incorporated in the Federal Republic of Germany    76
ARTICLE VIII EVENTS OF DEFAULT    76
SECTION 8.1.    Listing of Events of Default    76
SECTION 8.1.1    Non-Payment of Obligations    76
SECTION 8.1.2    Breach of Warranty    76
SECTION 8.1.3    Non-Performance of Certain Covenants and Obligations    76
SECTION 8.1.4    Default on Other Indebtedness    77
    viii


SECTION 8.1.5    Bankruptcy, Insolvency, etc.    77
SECTION 8.2.    Action if Bankruptcy    78
SECTION 8.3.    Action if Other Event of Default    78
ARTICLE IX PREPAYMENT EVENTS    79
SECTION 9.1.    Listing of Prepayment Events    79
SECTION 9.1.1    Change of Control    79
SECTION 9.1.2    Unenforceability    79
SECTION 9.1.3    Approvals    79
SECTION 9.1.4    Non-Performance of Certain Covenants and Obligations    79
SECTION 9.1.5    Judgments    79
SECTION 9.1.6    Condemnation, etc.    80
SECTION 9.1.7    Arrest    80
SECTION 9.1.8    Sale/Disposal of the Purchased Vessel    80
SECTION 9.1.9    BpiFAE Insurance Policy    80
SECTION 9.1.10    Illegality    80
SECTION 9.1.11    Framework Prohibited Events    80
SECTION 9.1.12    80
SECTION 9.1.13    Breach of Principles and Framework    81
SECTION 9.2.    Mandatory Prepayment    81
SECTION 9.3.    Mitigation    81
ARTICLE X THE FACILITY AGENT AND THE ECA AGENT    82
SECTION 10.1.    Actions    82
SECTION 10.2.    Indemnity    82
SECTION 10.3.    Funding Reliance, etc.    82
SECTION 10.4.    Exculpation    84
SECTION 10.5.    Successor    85
SECTION 10.6.    Loans by the Facility Agent    85
    viii


SECTION 10.7.    Credit Decisions    86
SECTION 10.8.    Copies, etc.    86
SECTION 10.9.    The Agents’ Rights    86
SECTION 10.10.    The Facility Agent’s Duties    86
SECTION 10.11.    Employment of Agents    87
SECTION 10.12.    Distribution of Payments    87
SECTION 10.13.    Reimbursement    87
SECTION 10.14.    Instructions    87
SECTION 10.15.    Payments    88
SECTION 10.16.    “Know your customer” Checks    88
SECTION 10.17.    No Fiduciary Relationship    88
SECTION 10.18.    Illegality    88
ARTICLE XI MISCELLANEOUS PROVISIONS    88
SECTION 11.1.    Waivers, Amendments, etc.    88
SECTION 11.2.    Notices    89
SECTION 11.3.    Payment of Costs and Expenses    91
SECTION 11.4.    Indemnification    91
SECTION 11.5.    Survival    92
SECTION 11.6.    Severability    92
SECTION 11.7.    Headings    93
SECTION 11.8.    Execution in Counterparts, Effectiveness, etc.    93
SECTION 11.9.    Third Party Rights    93
SECTION 11.10.    Successors and Assigns    93
SECTION 11.11.    Sale and Transfer of the Loan; Participations in the Loan    93
SECTION 11.11.1    Assignments    93
SECTION 11.11.2    Participations    96
SECTION 11.11.3    Register    97
    viii


SECTION 11.11.4    Rights of BpiFAE to payments    97
SECTION 11.12.    Other Transactions    97
SECTION 11.13.    BpiFAE Insurance Policy    97
SECTION 11.13.1    Terms of BpiFAE Insurance Policy    97
SECTION 11.13.2    Obligations of the Borrower    98
SECTION 11.13.3    Obligations of the ECA Agent and the Lenders    98
SECTION 11.14.    Law and Jurisdiction    99
SECTION 11.14.1    Governing Law    99
SECTION 11.14.2    Jurisdiction    99
SECTION 11.14.3    Alternative Jurisdiction    99
SECTION 11.14.4    Service of Process    99
SECTION 11.15.    Confidentiality    99
SECTION 11.16.    French Authority Requirements    100
SECTION 11.17.    Waiver of immunity    100
SECTION 11.18.    Acknowledgement and Consent to Bail-In of EEA Financial Institutions    101



    viii


EXHIBITS

Exhibit A - Form of Loan Request
Exhibit B-1 - Form of Opinion of Liberian Counsel to Borrower
Exhibit B-2 - Form of Opinion of English Counsel to the Facility Agent and the Lenders
Exhibit B-3 - Form of Opinion of French Counsel to the Facility Agent and the Lenders
Exhibit B-4 - Form of Opinion of US Tax Counsel to the Lenders
Exhibit C - Form of Lender Assignment Agreement
Exhibit D - Form of Certificate of French Content
Exhibit E-1 - Form of Delivery Non-Yard Costs Certificate
Exhibit E-2
- Form of Final Non-Yard Costs Certificate
Exhibit F - Silversea Indebtedness and Liens
Exhibit G - Form of First Priority Guarantee
Exhibit H - Form of Second Priority Guarantee
Exhibit I - Form of Third Priority Guarantee
Exhibit J - Form of Senior Parties Subordination Agreement
Exhibit K - Form of Other Senior Parties Subordination Agreement
Exhibit L - Framework
Exhibit M - Debt Deferral Extension Regular Monitoring Requirements
Exhibit N - Replacement covenants with effect from the Guarantee Release Date


    viii



CREDIT AGREEMENT
HULL NO. M34 CREDIT AGREEMENT, dated 24 July 2017 as novated, amended and restated on the Actual Delivery Date (as defined below), and as amended and restated by a first novation agreement supplement dated 12 March 2020, and as further amended by a second novation agreement supplement dated 29 August 2020, and as further amended and restated by a third novation agreement supplement dated 13 November 2020, and as further novated and restated by a fourth novation agreement supplement dated 12 July 2021, is among Royal Caribbean Cruises Ltd., a Liberian corporation (the “Borrower”), SMBC Bank International plc in its capacity as agent for the Lenders referred to below in respect of BpiFAE-related matters (in such capacity, the “ECA Agent”), Citibank Europe plc, UK Branch in its capacity as facility agent (in such capacity, the “Facility Agent”) and the financial institutions listed in Schedule 1 to the Novation Agreement (as defined below) as lenders (in such capacity, together with each of the other Persons that shall become a “Lender” in accordance with clause 12 of the Novation Agreement or Section 11.11.1 hereof, each of them individually a “Lender” and, collectively, the “Lenders”).
W I T N E S S E T H:
WHEREAS,
(A)    The Borrower and Chantiers de l’Atlantique (previously known as STX France S.A.) (the “Builder”) have entered on 30 September 2016 into a Contract for the Construction and Sale of Hull No. M34 (as amended from time to time, the “Construction Contract”) pursuant to which the Builder has agreed to design , construct, equip, complete, sell and deliver the passenger cruise vessel bearing Builder’s hull number M34 which shall be owned by the Nominated Owner (the “Purchased Vessel”).
(B)    The Lenders have agreed to make available to the Borrower, upon the terms and conditions contained herein, a US dollar loan facility calculated on the amount (the “Maximum Loan Amount”) equal to the EUR sum of:
(i)    eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel, and including Non-Yard Costs of up to EUR 76,000,000 (the “Maximum Non-Yard Costs Amount”) and the Other Basic Contract Price Increases (as defined below) for the Purchased Vessel of up to EUR 22,000,000 (but which, when aggregated with the Non-Yard Costs, shall not exceed an amount equal to EUR 79,000,000), and all of which amounts shall not exceed in aggregate EUR 741,071,000;
(ii)    eighty per cent (80%) of the change orders of up to EUR 126,207,100 effected in accordance with the Construction Contract; and
(iii)    100% of the BpiFAE Premium (as defined below),
being an amount no greater than EUR 714,637,154 and being made available in the US Dollar Equivalent of that Maximum Loan Amount (as such Dollar amount may be adjusted pursuant to clause 5.3 of the Novation Agreement).
1


(C)    Of the amounts referred to in recital (B)(i) and (ii) above, the Lenders have made certain amounts available to the Original Borrower during the period prior to the Actual Delivery Date pursuant to this Agreement (the liability for which amount has been assumed by the Borrower following the novation of this Agreement pursuant to the Novation Agreement) and, in relation to the amount referred to in recital (B)(i), the balance has been or shall be made available to the Borrower as an Additional Advance pursuant to the Novation Agreement and this Agreement.
(D)    The Parties have previously amended this Agreement pursuant to the Third Novation Agreement Supplement (as defined below) in connection with the provision of the Guarantees (as defined below).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1.    Defined Terms. The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall, when capitalized, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):
“Accumulated Other Comprehensive Income (Loss)” means at any date the Borrower’s accumulated other comprehensive income (loss) on such date, determined in accordance with GAAP.
“Actual Delivery Date” means the date on which the Purchased Vessel is delivered by the Builder to, and accepted by, the Borrower under the Construction Contract, being also the date on which the final balance of the Loan is advanced by way of the Additional Advances.
“Additional Advances” is defined in the Novation Agreement.
“Additional Guarantee” means a guarantee of the Obligations provided by a New Guarantor in a form and substance substantially the same as the other Guarantees (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and acceptable to BpiFAE.
“Additional Subordination Agreement” means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee, as applicable, in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and the beneficiaries of any Indebtedness incurred by the relevant Guarantor, as applicable, and acceptable to BpiFAE.
“Adjustable Amount” means, as of any time of determination, $500,000,000; provided if the aggregate amount of New Capital is equal to or greater than $500,000,000, then the Adjustable Amount shall be $350,000,000.
“Adjusted Cash Balance” means, as of any date (the “Measurement Date”), the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP plus (a) any amounts available to be
    2


drawn by the Borrower and/or any of its Subsidiaries under committed but undrawn term loan or revolving credit facility agreements (excluding any amounts available under agreements where the proceeds are only intended to be used to fund the purchase of new Vessels) and less (b) the sum of (i) any scheduled payments of principal or interest (but for the purposes of anticipating any interest liabilities, the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the Measurement Date) in respect of debt during the period commencing on the Measurement Date and ending on the date that is six months thereafter, (ii) any customer deposits held by the Borrower or its Subsidiaries for cruises that are scheduled to commence within three months of the Measurement Date and (iii) any planned Non-Financed Capex during the period commencing on the Measurement Date and ending on the date that is six months thereafter.
“Adjusted EBITDA After Principal and Interest” means, for any Last Reported Fiscal Quarter, the Borrower’s EBITDA After Principal and Interest for such period, excluding those items, if any, that the Borrower has excluded in determining “Adjusted Net Income” for such period as disclosed in the Borrower’s annual report on 10-K or quarterly report on 10-Q, as applicable, for such Last Reported Fiscal Quarter, as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
“Affiliate” of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or indirectly, power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
“Agent” means either the ECA Agent or the Facility Agent and “Agents” means both of them.
“Agreement” means, on any date, this credit agreement as originally in effect on the Signing Date and as novated, amended and restated by the Novation Agreement and as thereafter from time to time amended, supplemented, amended and restated, or otherwise modified and in effect on such date.
“Annex VI” means Annex VI of the Protocol of 1997 (as subsequently amended from time to time) to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol), as modified by the Protocol of 1978 relating thereto.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.
“Anticipated Delivery Date” means the Expected Delivery Date (as defined in the Receivable Purchase Agreement) as at the Signing Date, namely 20 October 2022.
“Applicable Commitment Rate” means (x) from the Signing Date up to and including the date falling two years prior to the Anticipated Delivery Date, 0.15% per annum, (y) from the day following the date falling two years prior to the Anticipated Delivery Date up to and including the date falling one year prior to the Anticipated Delivery Date, 0.28% per annum, and (z) from the day following the date falling one year prior to the Anticipated Delivery Date until the Commitment Fee Termination Date, 0.33% per annum.

    3


“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.
“Assignee Lender” is defined in Section 11.11.1.
“Authorized Officer” means those officers of the Borrower authorized to act with respect to the Loan Documents and whose signatures and incumbency shall have been certified to the Facility Agent by the Secretary or an Assistant Secretary of the Borrower.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule; and (b) in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
“Bank Indebtedness” means the Borrower’s Indebtedness up to a maximum aggregate principal amount of $5,300,000,000 under the following agreements (as amended, restated, supplemented, extended, refinanced, replaced or otherwise modified from time to time): (a) the USD1,550,000,000 revolving credit facility maturing in 2022 with Nordea Bank AB (publ), New York Branch as agent, (b) the USD1,925,000,000 revolving credit facility maturing in 2024 with The Bank of Nova Scotia as agent, (c) the USD1,000,000,000 term loan maturing on 5 April 2022 with Bank of America, N.A. as agent, (d) the USD300,000,000 term loan maturing on 7 June 2028 with Nordea Bank ABP, New York Branch as agent, (e) the USD55,827,065 term loan maturing on 5 December 2022 with Sumitomo Mitsui Banking Corporation as agent, (f) the €80,000,000 term loan maturing in November 2024 with Skandinaviska Enskilda Banken AB (publ) as agent, (g) the USD130,000,000 term loan maturing on 2 February 2023 with Industrial and Commercial Bank of China Limited, New York Branch as agent, (h) that certain guarantee dated 18 July 2016 with SMBC Leasing and Finance, Inc. as agent in connection with liabilities relating to the “Lease”, the “Construction Agency Agreement”, the “Participation Agreement” and any other “Operative Document” (as each term is defined in such guarantee) and (i) any other agreement (other than in connection with Credit Card Obligations) as to which the Second Priority Guarantors provide a first priority guarantee package.
“Bank of Nova Scotia Agreement” means the U.S. $1,925,000,000 amended and restated credit agreement dated as of 4 December 2017 among the Borrower, as borrower, the various financial institutions as are or shall become parties thereto, as lenders, and The Bank of Nova Scotia, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Basic Contract Price” is as defined in the Construction Contract.
“Borrower” is defined in the preamble.
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“BpiFAE” means BpiFrance Assurance Export, the French export credit agency, a French société par action simplifiée à associé unique with its registered office at 27-31, avenue du Général Leclerc, 94710 Maisons-Alfort Cedex, France, registered at the trade and companies registry of Créteil under number 815 276 308 and includes its successors in title or any other person succeeding to BpiFrance Assurance Export in the role as export credit agency of the Republic of France to manage and provide under its control, on its behalf and in its name the public export guarantees as provided by article L 432-1 of the French insurance code.
“BpiFAE Enhanced Guarantee” means the enhanced guarantee (garantie rehaussée) issued or to be issued by BpiFAE to the benefit of CAFFIL in accordance with article 84 of the French Amending Finance Law 2012 (as amended) in relation to the refinancing of SFIL’s participation and Commitments under the Loan, and any other documents (including any security) entered into or to be entered into by SFIL with CAFFIL and/or BpiFAE in relation thereto.
“BpiFAE Insurance Policy” means the export credit insurance policy in respect of the Loan issued by BpiFAE for the benefit of the Lenders.
“BpiFAE Premium” means the premium payable to BpiFAE under and in respect of the BpiFAE Insurance Policy.
“Builder” is defined in the preamble.
“Business Day” means any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York City, London, Madrid or Paris, and if the applicable Business Day relates to an advance of all or part of the Loan, an Interest Period, prepayment or conversion, in each case with respect to the Loan bearing interest by reference to the LIBO Rate, a day on which dealings in deposits in Dollars are carried on in the London interbank market.
“B34 Facility Amendment Date” means 20 March 2018, the effective date of the third supplemental agreement dated 16 March 2018 to (among other things) a credit facility supported by BpiFAE (pertaining to Hull No. B34) reflecting the alignment of certain provisions and covenants with the Borrower’s revolving credit facility refinanced on 12 October 2017.
“CAFFIL” means Caisse Française de Financement Local, a French société anonyme, with its registered office at 1-3 rue du Passeur de Boulogne, 92130 Issy-les-Moulineaux, France, registered at the trade and companies registry of Nanterre under number 421 318 064.
“Capital Lease Obligations” means obligations of the Borrower or any Subsidiary of the Borrower under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases.
“Capitalization” means, at any date, the sum of (a) Net Debt on such date, plus (b) Stockholders’ Equity on such date.
“Capitalized Lease Liabilities” means the principal portion of all monetary obligations of the Borrower or any of its Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases, and, for purposes of this
    5


Agreement and each other Loan Document, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
“Cash Equivalents” means all amounts other than cash that are included in the “cash and cash equivalents” shown on the Borrower’s balance sheet prepared in accordance with GAAP.
“Change of Control” means an event or series of events by which (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 50% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
“CIRR” means 2.56% per annum being the Commercial Interest Reference Rate determined in accordance with the OECD Arrangement for Officially Supported Export Credits to be applicable to the Loan hereunder.
“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.
“Commitment” is defined in Section 2.2 and means, relative to any Lender, such Lender’s obligation to make the Loan pursuant to Section 2.1.
(i)    “Commitment Fee” is defined in Section 3.4.
(ii)    “Commitment Fee Termination Date” is defined in Section 3.4.
“Commitment Termination Date” means the Back Stop Date (as defined in the Receivable Purchase Agreement) (or such later date as the Lenders and BpiFAE may agree).
“Construction Contract” is defined in the preamble.
“Contract Price” is as defined in the Construction Contract and which includes a lump sum amount in respect of the Non-Yard Costs.

    6


“Covenant Modification Date” means the later to occur of (a) the expiry of the Financial Covenant Waiver Period and (b) the date upon which the financial covenants set out in Section 7.2.4 have been modified in this Agreement in a form and substance satisfactory to BpiFAE, the Borrower and the Lenders.
“Covered Taxes” is defined in Section 4.6.
“Credit Card Obligations” means any obligations of the Borrower under credit card processing arrangements or other similar payment processing arrangements entered into in the ordinary course of business of the Borrower.
“DDTL Indebtedness” means the Borrower’s Indebtedness (or, if such Indebtedness has not yet been incurred, the commitments by lenders to provide Indebtedness to the Borrower as of the effectiveness of the Third Novation Agreement Supplement) in connection with that certain Commitment Letter, dated as of August 12, 2020, between the Borrower and MORGAN STANLEY SENIOR FUNDING INC. (as amended, restated, extended, supplemented, refinanced, replaced or otherwise modified from time to time).
“Debt Deferral Extension Regular Monitoring Requirements" means the general test scheme/reporting package in the form set out in Exhibit M to this Agreement submitted or to be submitted (as the case may be) by the Borrower in accordance with Section 7.1.1(i).
“Debt Incurrence” means any incurrence of Indebtedness for borrowed money by any Group Member, whether pursuant to a public offering or a Rule 144A or other private placement of debt securities (including any secured debt securities (but excluding any unsecured debt securities) convertible into equity securities) or an incurrence of loans under any loan or credit facility, or any issuance of bonds, other than:
(a)    any Indebtedness (but having regard, in respect of any secured and/or guaranteed Indebtedness, to the restrictions set out in Section 7.2.9(b)) incurred by a Group Member between 1 April 2020 and the earlier of (i) the end of the Early Warning Monitoring Period and (ii) 31 December 2023 (or such later date as may, with the prior consent of BpiFAE, be agreed between the Borrower and the Lenders) (the “Debt Incurrence Trigger Date”);
(b)    Indebtedness incurred by a Group Member pursuant to an intra-Group loan from another Group Member, provided that no Group Member shall be permitted to incur any such Indebtedness at any time where an Event of Default or a Prepayment Event has occurred and is continuing;
(c)    Indebtedness incurred to refinance (and for this purpose having regard to the applicable provisions of Section 7.2.9) a maturity payment under any existing loan or credit facility (including any crisis and/or recovery-related Indebtedness incurred by a Group Member prior to the Debt Incurrence Trigger Date) or issued bonds of a Group Member, provided that;
(i)    in the case of any such refinancing, the amount of such Indebtedness being used in connection with that refinancing does not increase the aggregate principal amount of such Indebtedness or the commitments outstanding at the time of that refinancing and is otherwise incurred on a basis permitted pursuant to this Agreement (including, without limitation, in relation to the provision of
    7


any Liens or guarantees that may be provided to support the relevant refinancing arrangement); and
(ii)    in the case of the refinancing of crisis and/or recovery-related Indebtedness of the type referred to above, that refinancing shall either (A) reduce the interest burden of the Borrower (and for such purposes the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the time of the new debt incurrence) or (B) replace the existing secured and/or guaranteed Indebtedness with unsecured and unguaranteed debt;
(d)    Indebtedness provided by banks or other financial institutions under the Borrower’s senior unsecured revolving credit facilities in an aggregate amount not greater than the commitments thereunder as in effect on 19 February 2021 plus the amount of any existing uncommitted incremental facilities (i.e. any unused accordion) on such facilities;
(e)    Indebtedness provided by banks or other financial institutions which, as at 19 February 2021, is committed but yet to be incurred in respect of the DDTL Indebtedness (but, in respect of that DDTL Indebtedness, up to a maximum amount of $700,000,000);
(f)    any of the following types of indebtedness in each case incurred in the ordinary course of business of any Group Member and with the prior written consent of BpiFAE:
(i)    the issuances of commercial paper;
(ii)    Capitalized Lease Liabilities;
(iii)    purchase money indebtedness;
(iv)    indebtedness under overdraft facilities; and
(v)    financial obligations in connection with repurchase agreements and/or securities lending arrangements; and
(g)    vessel financings (including the financing of pre-delivery contract installments, change orders, owner furnished equipment costs or other such similar arrangements) in respect of vessels for which shipbuilding contracts have been executed on or prior to 28 April 2020 (provided, however, that a refinancing of a vessel financing shall not be included in this carve-out (g)).
“Default” means any Event of Default or any condition, occurrence or event which, after notice or lapse of time or both, would constitute an Event of Default.
“Delivery Non-Yard Costs Certificate” means the certificate to be provided to the Facility Agent in the form of Exhibit E-1 on or prior to the Actual Delivery Date certifying the amount in EUR of the Paid Non-Yard Costs and the Unpaid Non-Yard Costs as at the Actual Delivery Date, duly signed by the Borrower and endorsed by the Builder.
“Dispose” means to sell, transfer, license, lease, distribute or otherwise transfer, and “Disposition” shall have a correlative meaning.
"Disruption Event" means either or both of:
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(a)    a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Loan Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties; or
(b)    the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a party preventing that, or any other, party:
(i)    from performing its payment obligations under the Loan Documents; or
(ii)    from communicating with other parties or in accordance with the terms of the Loan Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party whose operations are disrupted.
“Dollar” and the sign “$” mean lawful money of the United States.
“Early Warning Monitoring Period” means the period beginning on the Novation Effective Time and ending on the last day of two consecutive Fiscal Quarters in which the Borrower has achieved a higher Adjusted EBITDA After Principal and Interest for such Fiscal Quarters when compared with the same calculation for the corresponding Fiscal Quarters of the 2019 Fiscal Year, as evidenced pursuant to the certificate to be submitted by the Borrower pursuant to Section 7.1.1(l) (and such date shall be notified to the Borrower by the Facility Agent).
“EBITDA After Principal and Interest” means, for any Last Reported Fiscal Quarter, the Borrower’s consolidated operating income for such period plus any depreciation and amortization expenses that were deducted in calculating consolidated operating income for such period and minus (a) any scheduled amortization or maturity payments made during such period and (b) consolidated interest expense of the Borrower for such period (net of any capitalized interest and interest income), in each relevant case as determined in accordance with GAAP.
“ECA Agent” is defined in the preamble.
“ECA Financed Vessel” means any Vessel subject to any ECA Financing.
“ECA Financing” means any financing arrangement pursuant to which one or more ECA Guarantor provides guarantees or other credit support (including but not limited to a sale and leaseback transaction or bareboat charter or lease or an arrangement whereby a Vessel under construction is pledged as collateral to secure the indebtedness of a shipbuilder, and, for the avoidance of doubt, committed but undrawn export credit agency facilities), entered into by the Borrower or a Subsidiary for the purpose of financing or refinancing all or any part of the purchase price, cost of design or construction of a Vessel or Vessels or the acquisition of Equity Interests of entities owning, or to own, Vessels.
“ECA Guarantor” means BpiFrance Assurance Export, Finnvera plc or Euler Hermes Aktiengesellschaft (or, in each case, any successor thereof).

    9


“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of a Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“Effective Date” means the date this Agreement becomes effective pursuant to Section 11.8.
“Effective Time” means the Novation Effective Time as defined in the Novation Agreement.
“Environmental Laws” means all applicable federal, state, local or foreign statutes, laws, ordinances, codes, rules and regulations (including consent decrees and administrative orders) relating to the protection of the environment.
“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities) but excluding any debt securities convertible into such Equity Interests.
“Escrow Account” means the Dollar escrow account of the Borrower opened or to be opened with the Escrow Account Bank for the purpose of receiving the relevant amount of the Additional Advances in respect of Unpaid Non-Yard Costs in accordance with Section 2.3(f).
“Escrow Account Bank” means Citibank N.A., London Branch of Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB.
“Escrow Account Security” means the account security in respect of the Escrow Account executed or, as the context may require, to be executed by the Borrower in favour of the Security Trustee in the form agreed by the Lenders and the Borrower on or about the Restatement Date.
“Escrow Agency and Trust Deed” means the agency and trust deed executed or, as the context may require, to be executed by, amongst others, the Borrower, the parties to this Agreement and the Security Trustee.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EUR”, “Euro” and the sign “€” mean the currency of participating member states of the European Monetary Union pursuant to Council Regulation (EC) 974/98 of 3 May 1998, as amended from time to time.
“Event of Default” is defined in Section 8.1.
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“Existing Principal Subsidiaries” means each Subsidiary of the Borrower that is a Principal Subsidiary on the Signing Date.
“Facility Agent” is defined in the preamble and includes each other Person as shall have subsequently been appointed as the successor Facility Agent, and as shall have accepted such appointment, pursuant to Section 10.5.
“FATCA” means (a) Sections 1471 through 1474 of the Code, as in effect at the date hereof, and any current or future regulations promulgated thereunder or official interpretations thereof, (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
“FATCA Deduction” means a deduction or withholding from a payment under a Loan Document required by FATCA.
“FATCA Exempt Party” means a party to this Agreement that is entitled to receive payments free from any FATCA Deduction.
“Fee Letter” means any letter entered into by reference to this Agreement between any or all of the Facility Agent, the Mandated Lead Arrangers, the Arrangers, the Lenders and/or the Borrower setting out the amount of certain fees referred to in, or payable in connection with, this Agreement.
“Final Maturity” means twelve (12) years after the Actual Delivery Date.
“Final Non-Yard Costs Certificate” means the certificate to be provided to the Facility Agent in the form of Exhibit E-2 on or prior to the NYC Cut Off Date certifying the amount in Euro of the Paid Non-Yard Costs as at the date of that certificate, duly signed by the Borrower.
“Financial Covenant Waiver Period” means the period from and including 1 April 2020 to and including 30 September 2022 (it being acknowledged that the Financial Covenant Waiver Period shall have expired prior to the occurrence of the Novation Effective Time).
“First Novation Agreement Supplement” means the supplemental agreement dated 12 March 2020 and made between, amongst others, the Original Borrower and the parties hereto, pursuant to which the Novation Agreement was amended and restated.
“First Priority Assets” means the Vessels known on the date the Third Novation Agreement Supplement becomes effective as or that sailed under the name (i) Celebrity Constellation, (ii) Celebrity Equinox, (iii) Celebrity Millennium, (iv) Celebrity Silhouette, (v) Celebrity Summit, (vi) Celebrity Eclipse, (vii) Celebrity Infinity, (viii) Celebrity Reflection and (ix) Celebrity Solstice (it being understood that such Vessels shall remain “First Priority Assets” regardless of any change in name or ownership after such date).
“First Priority Guarantee” means the first priority guarantee granted by the First Priority Guarantor prior to the Effective Time (and any other first priority guarantee granted by a First Priority Holdco Subsidiary in connection with becoming a First Priority Guarantor) in favor of
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the Facility Agent for the benefit of the Agent and the Lenders, in each case substantially in the form attached hereto as Exhibit G.
“First Priority Guarantor” means Celebrity Cruise Lines Inc. (and any of its successors) and any other First Priority Holdco Subsidiary that has granted or, prior to that entity becoming a First Priority Holdco Subsidiary pursuant to a Disposal of a First Priority Asset in accordance with Section 7.2.5(a)(v)(A), will grant a First Priority Guarantee.
“First Priority Holdco Subsidiaries” means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any First Priority Assets.
“First Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $3,320,000,000):
(a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness); and
(b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower.
Notwithstanding the foregoing, a First Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a First Priority Release Event would have occurred but for the continuance of the payment default described above, then a First Priority Release Event will occur immediately upon that payment default being remedied.
“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
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(ii)    scheduled payments of principal of all debt less New Financings (determined in accordance with GAAP, but in any event including Capitalized Lease Liabilities) of the Borrower and its Subsidiaries for such period.
“Fixed Rate” means a rate per annum equal to the sum of the CIRR plus the Fixed Rate Margin.
“Fixed Rate Margin” means 0.62% per annum.
“Floating Rate” means a rate per annum equal to the sum of the LIBO Rate plus the Floating Rate Margin.
“Floating Rate Margin” means, for each Interest Period 1.05% per annum.
“Fourth Novation Agreement Supplement” means the supplemental agreement dated 12 July 2021 and made between, amongst others, the Original Borrower, the Security Trustee and the parties hereto, pursuant to which the Novation Agreement was amended in connection with the Framework.
“Fourth Supplement Effective Date” has the meaning ascribed to the term “Amendment Effective Date” in the Fourth Novation Agreement Supplement.
“Framework” means the document titled “Debt Deferral Extension Framework” in the form set out in Exhibit L to this Agreement, and which sets out certain key principles and parameters and being applicable to BpiFAE-covered loan agreements such as this Agreement.
“F.R.S. Board” means the Board of Governors of the Federal Reserve System or any successor thereto.
“French Authorities” means the Direction Générale du Trésor of the French Ministry of Economy and Finance, any successors thereto, or any other governmental authority in or of France involved in the provision, management or regulation of the terms, conditions and issuance of export credits including, among others, such entities to whom authority in respect of the extension or administration of export financing matters have been delegated, such as BpiFAE and Natixis DAI.
“Funding Losses Event” is defined in Section 4.4.1.
“GAAP” is defined in Section 1.4.
“Government-related Obligations” means obligations of the Borrower or any Subsidiary of the Borrower under, or Indebtedness incurred by the Borrower or any Subsidiary of the Borrower to satisfy obligations under, any governmental requirement imposed by any Applicable Jurisdiction that must be complied with to enable the Borrower and its Subsidiaries to continue their business in such Applicable Jurisdiction, excluding, in any event, any taxes imposed on the Borrower or any Subsidiary of the Borrower.
“Group” means the Borrower and its Subsidiaries from time to time.
“Group Member” means any entity that is a member of the Group.

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“Group Member Guarantee” means any guarantee or other similar or analogous credit support arrangement granted by a Group Member (other than the Borrower) in support of the Indebtedness of another Group Member or any other Person.
“Guarantee” means the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee and (if applicable) any Additional Guarantee and “Guarantees” means any or all of them.
“Guarantee Release Date” means the date upon which the First Priority Release Event, the Second Priority Release Event and the Third Priority Release Event have all occurred and accordingly, subject to Section 7.2.5(g) (and in particular proviso (2) to such Section 7.2.5(g)) each of the Guarantees has been released by the Facility Agent, and also being the date upon which, in accordance with Section 7.3, certain provisions of this Agreement shall be replaced by the provisions set out in Exhibit N, and if such date falls prior to the Novation Effective Time, the Guarantee Release Date shall be deemed to occur at the Novation Effective Time.
“Guarantor” means the provider of any Guarantee from time to time and “Guarantors” means any or all of them.
“Hedging Instruments” means options, caps, floors, collars, swaps, forwards, futures and any other agreements, options or instruments substantially similar thereto or any series or combination thereof used to hedge interest, foreign currency and commodity exposures.
“herein”, “hereof”, “hereto”, “hereunder” and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document.
“Historic Screen Rate” means, in relation to the Loan, the most applicable recent rate which appeared on Thomson Reuters LIBOR 01 Page (or any replacement page) for the currency of the Loan and for a period equal to the applicable Interest Period for the Loan and which is no more than 7 days before the commencement of the applicable Interest Period for which such rate may be applicable.
“Illegality Notice” is defined in Section 3.2(b).
“Indebtedness” means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than (i) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 180 days of the date the respective goods are delivered or the respective services are rendered and (ii) any purchase price adjustment, earnout or deferred payment of a similar nature incurred in connection with an acquisition (but only to the extent that no payment has at the time accrued pursuant to such purchase price adjustment, earnout or deferred payment obligation); (c) Indebtedness of others secured by a Lien on the property of such Person, whether or not the respective Indebtedness so secured has been assumed by such Person; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (e) Capital Lease Obligations of
    14


such Person; (f) guarantees by such Person of Indebtedness of others, up to the amount of Indebtedness so guaranteed; (g) obligations of such Person in respect of surety bonds and similar obligations; and (h) liabilities arising under Hedging Instruments.
“Indemnified Liabilities” is defined in Section 11.4.
“Indemnified Parties” is defined in Section 11.4.
“Interest Payment Date” means each Repayment Date.
“Interest Period” means the period between the Actual Delivery Date and the first Repayment Date, and subsequently each succeeding period between two consecutive Repayment Dates.
“Interest Stabilisation Agreement” means an agreement on interest stabilisation entered into between Natixis and each Lender (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of any security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1) in connection with the Loan.
“Investment Grade” means, with respect to Moody’s, a Senior Debt Rating of Baa3 or better and, with respect to S&P, a Senior Debt Rating of BBB- or better.
“Last Reported Fiscal Quarter(s)” means the most recently completed Fiscal Quarter(s) for which the Borrower has filed financial statements with the SEC as part of an annual report on Form 10-Q or a quarterly report on Form 10-Q.
“Lender” and “Lenders” are defined in the preamble.
“Lender Assignment Agreement” means any Lender Assignment Agreement substantially in the form of Exhibit C.
“Lending Office” means, relative to any Lender, the office of such Lender designated as such below its signature hereto or designated in a Lender Assignment Agreement or such other office of a Lender as designated from time to time by notice from such Lender to the Borrower and the Facility Agent, whether or not outside the United States but subject in all cases to the agreement of Natixis DAI in relation to the CIRR, which shall be making or maintaining the Loan of such Lender hereunder.
“LIBO Rate” means the rate per annum of the offered quotation for deposits in Dollars for six months (or for such other period as shall be agreed by the Borrower and the Facility Agent) which appears on Thomson Reuters LIBOR01 Page (or any successor page) at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period; provided that:
(a)    subject to Section 3.3.6, if no such offered quotation appears on Thomson Reuters LIBOR01 Page (or any successor page) at the relevant time the LIBO Rate shall be the Historic Screen Rate or, if it is not possible to calculate an Historic Screen Rate, it shall be the rate per annum certified by the Facility Agent to be the average of the rates quoted by the Reference Banks as the rate at which each of the Reference Banks was (or would have been) offered deposits of Dollars by prime banks
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in the London interbank market in an amount approximately equal to the amount of the Loan and for a period of six months;
(b)    for the purposes of determining the post-maturity rate of interest under Section 3.3.4, the LIBO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Facility Agent may determine after consultation with the Lenders, which period shall be no longer than one month unless the Borrower otherwise agrees; and
(c)    if that rate is less than zero, the LIBO Rate shall be deemed to be zero.
“Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property to secure payment of a debt or performance of an obligation or other priority or preferential arrangement of any kind or nature whatsoever.
“Lien Basket Amount” is defined in Section 7.2.3(b).
“Loan” means the advances made by the Lenders under this Agreement from time to time or, as the case may be, the aggregate outstanding amount of such advances from time to time.
“Loan Documents” means this Agreement, the Novation Agreement, the Escrow Agency and Trust Deed, the First Novation Agreement Supplement, the Second Novation Agreement Supplement, the Third Novation Agreement Supplement, the Fourth Novation Agreement Supplement, the Fee Letters, the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee, any Additional Guarantee, the Subordination Agreements, any Additional Subordination Agreement, any New Guarantor Subordination Agreement, the Escrow Account Security and any other document designated as a Loan Document by the Borrower and the Facility Agent.
“Loan Request” means the loan request and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit A hereto.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of the Facility Agent or any Lender under the Loan Documents or (c) the ability of the Borrower to perform its payment Obligations under the Loan Documents to which it is a party.
“Material Guarantor” means (i) each of Celebrity Cruise Lines Inc., RCI Holdings LLC, RCL Cruise Holdings LLC and RCL Cruises Ltd (and each of their respective successors) and (ii) any other entity that becomes a First Priority Guarantor, a Second Priority Guarantor or a Third Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement.
“Material Litigation” is defined in Section 6.7.
“Maximum Loan Amount” is defined in the preamble.
“Maximum Non-Yard Costs Amount” is defined in the preamble.

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“Monthly Outflow” means, in respect of each monthly period, the quotient obtained by dividing:
a)    the sum of (i) Total Cruise Operating Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (ii) Marketing, Selling and Administrative Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter and (iii) Interest Expense, net of Interest Capitalized (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter minus (x) Interest Income (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (y) any non-cash charges or impairments included in the calculation of Total Cruise Operating Expenses or Marketing, Selling and Administrative Expenses pursuant to sub-clause (i) or (ii) of this definition and (z) any loss on extinguishment of debt included in Interest Expenses, net of Interest Capitalized (as each such capitalized expression is defined or referenced in the financial statements of the Borrower); by
b)    three,
as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
“Moody’s” means Moody’s Investors Service, Inc.
“Natixis” means Natixis, a French société anonyme with its registered office at 30, avenue Pierre Mendès France, 75013 Paris, France, registered with the Paris Commercial and Companies Registry under number 542 044 524 RCS Paris.
“Natixis DAI” means Natixis DAI Direction des Activités Institutionnelles.
“Net Debt” means, at any time, the aggregate outstanding principal amount of all debt (including, without limitation, the principal portion of all capitalized leases) of the Borrower and its Subsidiaries (determined on a consolidated basis in accordance with GAAP) less the sum of (without duplication);
(a)    all cash on hand of the Borrower and its Subsidiaries; plus
(b)    all Cash Equivalents.
“Net Debt to Capitalization Ratio” means, as at any date, the ratio of (a) Net Debt on such date to (b) Capitalization on such date.
“New Capital” means the aggregate gross amount of proceeds from any capital (whether in the form of debt, equity or otherwise) raised by the Borrower or any of its Subsidiaries in one or a series of financings after January 1, 2021 (including (a) amounts borrowed (that were previously undrawn) under committed term loan facilities existing as of such date and (b) Indebtedness borrowed in lieu of the committed term loan facilities described in the foregoing clause (a) if the incurrence of such Indebtedness results in a reduction or termination of such commitments); provided that proceeds of any capital raise which are used substantially concurrently for (i) the purchase price of a new Vessel or (ii) repayment of existing Indebtedness (other than Indebtedness (A) maturing no later than the end of the first full calendar year following the date of such repayment or (B) under any revolving credit agreement the repayment of which is not accompanied by a corresponding permanent reduction in the related revolving credit commitments), in each case, shall not constitute New Capital.
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“New Financings” means proceeds from:
(a)    borrowed money (whether by loan or issuance and sale of debt securities), including drawings under this Agreement and any revolving credit facilities of the Borrower, and
(b)    the issuance and sale of equity securities.
“New Guarantor” means, with respect to any Vessel delivered after the effectiveness of the Third Novation Agreement Supplement, the Subsidiary of the Borrower that (a) directly owns the Equity Interests of the Principal Subsidiary that acquired such Vessel and (b) delivers an Additional Guarantee.
“New Guarantor Subordination Agreement” means a subordination agreement pursuant to which the Lenders’ rights under the applicable Additional Guarantee will be fully subordinated in right of payment to the rights of the beneficiaries of the applicable Senior Guarantee, which subordination agreement shall be in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and the agent, trustee or other representative for such Senior Guarantee.
“Nominated Owner” means a Subsidiary of the Borrower to be nominated by the Borrower prior to the Actual Delivery Date to take delivery of the Vessel under the Construction Contract.
“Non-Financed Capex” means, with respect to any period, (a) the aggregate amount of purchases of property (including Vessels) and equipment by the Borrower and its Subsidiaries during such period as determined in good faith by the Borrower minus (b) the aggregate amount of committed financing available to be drawn during such period to fund any such purchases of property and equipment.
“Non-Yard Costs” has the meaning assigned to “NYC Allowance” in paragraph 1.5 of Article II of the Construction Contract and, when such expression is prefaced by the word “incurred”, shall mean such amount of the Non-Yard Costs not exceeding EUR 76,000,000 and, when aggregated with the Other Basic Contract Price Increases, in an amount not exceeding EUR 79,000,000, as shall at the relevant time have been paid, or become payable, to the Builder by the Borrower under the Construction Contract as part of the Contract Price.
“Nordea Agreement” means the U.S. $1,150,000,000 amended and restated credit agreement dated as of October 12, 2017, among the Borrower, as the borrower, the various financial institutions as are or shall become parties thereto and Nordea Bank AB (publ), New York Branch as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Novated Loan Balance” is as defined in the Novation Agreement.
“Novation Agreement” means the novation agreement dated 24 July 2017 (as amended from time to time, including by the Third Novation Agreement Supplement) and made between the Original Borrower and the parties hereto pursuant to which (amongst other things) this Agreement was novated, amended and restated.
“Novation Effective Time” is as defined in the Novation Agreement.
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“NYC Cut Off Date” means the date falling 60 days after the Actual Delivery Date or such later date as the Lenders (with the approval of BpiFAE) may agree.
“Obligations” means all obligations (payment or otherwise) of the Borrower arising under or in connection with this Agreement.
“Obligors” means the Borrower and the Guarantors.
“Option Period” is defined in Section 3.2(c).
“Organic Document” means, relative to the Borrower, its articles of incorporation (inclusive of any articles of amendment to its articles of incorporation) and its by-laws.
“Original Borrower” means Houatorris Finance Limited of Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008, Cayman Islands.
“Other Basic Contract Price Increases” is defined in the Novation Agreement.
“Other ECA Parties” means the facility agents acting on behalf of the creditors under any ECA Financing, whether existing on or after the effectiveness of the Third Novation Agreement Supplement (excluding the Facility Agent acting in any representative capacity in connection with this Agreement).
“Other Guarantees” means the guarantees issued, or to be issued, by any of the First Priority Guarantor, the Second Priority Guarantors, the Third Priority Guarantor or any New Guarantor in favor of any Other ECA Party; provided that any Other Guarantee issued by (a) the First Priority Guarantor shall be pari passu in right of payment with the First Priority Guarantee, (b) any Second Priority Guarantor shall be pari passu (or junior) in right of payment with the Second Priority Guarantee, (c) the Third Priority Guarantor shall be pari passu (or junior) in right of payment with the Third Priority Guarantee and (d) any New Guarantor shall be pari passu in right of payment with each Additional Guarantee issued by such New Guarantor.
“Other Senior Parties” means each agent, trustee or other representative in respect of Bank Indebtedness or Credit Card Obligations.
“Paid Non-Yard Costs” means as at any relevant date, the amount in Euro of the Non-Yard Costs which have been paid for by the Borrower and, where applicable, supplied, installed and completed on the Purchased Vessel and as determined in accordance with the relevant amounts certified in the Delivery Non-Yard Costs Certificate or, as the case may be, the Final Non-Yard Costs Certificate as at such time.
“Pari Passu Creditor” means with respect to any Group Member, any creditor under or in respect of any Indebtedness incurred by such Group Member (including in respect of any ECA Financing) which is not, as at December 31, 2020, secured by a Lien over a Vessel or which, at any time (whether pursuant to the operation of Section 7.1.9(d) or otherwise), shares in the same security and/or guarantee package as the Lenders.
“Participant” is defined in Section 11.11.2.
“Participant Register” is defined in Section 11.11.2.

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“Percentage” means, relative to any Lender, the percentage set forth opposite its signature hereto or as set out in the applicable Lender Assignment Agreement, as such percentage may be adjusted from time to time pursuant to Section 4.9 or pursuant to Lender Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered pursuant to Section 11.11.1.
“Permitted Refinancing” means, in respect of any Indebtedness or commitments, any amendment, restatement, extension, renewal, refinancing or replacement that does not increase the aggregate principal amount of such Indebtedness or commitments outstanding at the time of such Permitted Refinancing other than by the amount of unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses associated with such amendment, restatement, supplement, refinancing or other modification.
“Person” means any natural person, corporation, limited liability company, partnership, firm, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity.
“Poseidon Principles” means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published in June 2019 as the same may be amended or replaced to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organisation from time to time.
“Prepayment Event” is defined in Section 9.1.
“Principal Subsidiary” means any Subsidiary of the Borrower that owns a Vessel.
“Purchase Price” means, with respect to any Vessel, the book value of such Vessel at the time initially acquired by a Principal Subsidiary.
“Purchased Vessel” is defined in the preamble.
“Receivable Purchase Agreement” is as defined in the Novation Agreement.
“Reference Banks” means Société Générale and SMBC Bank International plc and such other Lender as shall be so named by the Borrower and agrees to serve in such role and each additional Reference Bank and/or each replacement Reference Bank appointed by the Facility Agent pursuant to Section 3.3.6.
“Register” is defined in Section 11.11.3.
“Repayment Date” means, subject to Section 4.8(c), each of the dates for payment of the repayment installments of the Loan pursuant to Section 3.1.
“Required Lenders” means (a) at any time when SFIL is a Lender, SFIL and at least one other Lender that in the aggregate with SFIL hold more than 50% of the aggregate unpaid principal amount of the Loan or (b) or at any other time, Lenders that in the aggregate hold more than 50% of the aggregate unpaid principal amount of the Loan, and in each case, if no such principal amount is then outstanding, Lenders that in the aggregate have more than 50% of the Commitments.

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“Resolution Authority” means any body which has authority to exercise any Write-down and Conversion Powers.
“Restatement Date” means 12 March 2020, being the date on which the form of this Agreement was amended and restated pursuant to the First Novation Agreement Supplement.
“Restricted Credit Enhancement” means any Group Member Guarantee, Lien or other security or other similar or analogous credit support arrangement granted by a Group Member in respect of any Indebtedness of a Group Member.
“Restricted Loan Arrangement” means any loan or credit (including any seller’s credit granted in connection with the sale of a Vessel or other assets (and provided that any such sale complies with the provisions of Section 9.1.11(c))) made available by a Group Member to any Person but excluding any such loan or credit that is provided:
(a)    to another Group Member:
(b)    to a Person in respect of which the Borrower or any Subsidiary holds Equity Interests;
(c)    in circumstances where the relevant credit is a seller’s credit granted by that Group Member in the ordinary course of industry business and consistent with past practice; or
(d)    in circumstances where the relevant credit is otherwise in the ordinary course of business and/or consistent with past practice (it being agreed that any loans provided by the Group to its travel agents, vendors or customers to assist the Group during the crisis and/or recovery will be considered in the ordinary course of business) and where the aggregate amount of such credit referred to in this paragraph (d) does not exceed $100,000,000 (or its equivalent in any other currency) at any relevant time,
provided that no Group Member shall be permitted to make or grant any new loan or other credit (or make any further advances in respect of any existing loan or other credit) of any kind to any Person at any time where an Event of Default or a Prepayment Event has occurred and is continuing. It is agreed that for the purpose of this definition “credit” shall not include any short term trade and/or operational receivables owing to a Group Member by a Person who is not a Group Member and which are created or arise in the ordinary course of business.
“Restricted Payments” means any dividend or other distribution (whether in cash, securities or other property (other than Equity Interests)), with respect to any Equity Interests in the Borrower, or any share buy-back program or other payment (whether in cash, securities or other property (other than Equity Interests)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrower.
“Restricted Voluntary Prepayment” means, in respect of any Indebtedness for borrowed money of any Group Member (other than any such Indebtedness incurred pursuant to an ECA Financing), the relevant Group Member elects to prepay, repay or redeem that Indebtedness prior to its scheduled maturity date other than:
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(a)    any Indebtedness which is scheduled to mature on or prior to the end of the following calendar year (and whether pursuant to an amendment and extension of the agreements evidencing such Indebtedness and/or using proceeds raised by any Group Member in connection with any issuance of capital (whether in the form of Indebtedness for borrowed money, equity or otherwise but, in the case of any Indebtedness, subject to that Indebtedness being incurred in compliance with the carve-out provision set out in paragraph (c) of the definition of Debt Incurrence) or pursuant to the exercise of the equity claw feature in the Secured Note Indenture), provided, however, that the Borrower may, with the prior written consent of BpiFAE, prepay, repay or redeem any notes issued under indentures which are callable in accordance with their terms, including any call date through the use of the equity claw feature;
(b)    pursuant to a voluntary repayment under a revolving credit facility that does not result in the permanent reduction of the relevant revolving credit commitments under that revolving credit facility; and/or
(c)    where such prepayment, repayment or redemption is made solely for the purpose of avoiding an event of default or acceleration under the terms of the facility agreement in respect of the relevant Indebtedness.
“S&P” means Standard & Poor’s Financial Services LLC, a wholly-owned subsidiary of The McGraw-Hill Financial Inc.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state, or any person owned or controlled by any such Person or Persons, or (b) any Person operating, organized or resident in a Sanctioned Country.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom.
“SEC” means the United States Securities and Exchange Commission and any successor thereto.
“Second Novation Agreement Supplement” means the supplemental agreement dated 29 August 2020 and made between, amongst others, the Original Borrower, the Borrower and the Facility Agent, pursuant to which the Novation Agreement was supplemented.

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“Second Priority Assets” means the Vessels known on the date the Third Novation Agreement Supplement becomes effective as or that sailed under the name (i) Azamara Quest, (ii) Azamara Pursuit, (iii) Azamara Journey, (iv) Celebrity Edge, (v) Celebrity Apex, (vi) Celebrity Flora, (vii) Celebrity Xpedition, (viii) Celebrity Xperience, (ix) Celebrity Xploration, (x) Monarch, (xi) Horizon and (xii) Sovereign (it being understood that such Vessels shall remain “Second Priority Assets” regardless of any change in name or ownership after such date).
“Second Priority Guarantee” means the second priority guarantee granted by the Second Priority Guarantors prior to the Effective Time (and any other second priority guarantee granted by a Second Priority Holdco Subsidiary in connection with becoming a Second Priority Guarantor) in favor of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit H.
“Second Priority Guarantors” means RCL Cruise Holdings LLC, Torcatt Enterprises S.A., RCL Holdings Cooperatief UA, RCL Cruises Ltd and RCL Investments Ltd (and any of their respective successors) and any other Second Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Second Priority Holdco Subsidiary pursuant to a Disposal of a Second Priority Asset in accordance with Section 7.2.5(b)(iii)(A), will grant a Second Priority Guarantee.
“Second Priority Holdco Subsidiaries” means (a) RCL Cruises Ltd. or any other Subsidiaries of the Borrower that directly own all of the equity interests in (i) RCL TUI Cruises German Verwaltungs GmbH and (ii) RCL TUI Cruises German Holding GmbH & Co. KG and (b) one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Second Priority Asset. For the avoidance of doubt, Second Priority Holdco Subsidiaries shall not include any Principal Subsidiary.
“Second Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $3,320,000,000):
(a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
(b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Second Priority Guarantors in respect of the Bank Indebtedness.
Notwithstanding the foregoing, a Second Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled
    23


maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Second Priority Release Event would have occurred but for the continuance of the payment default described above, then a Second Priority Release Event will occur immediately upon that payment default being remedied.
“Secured Note Indebtedness” means the Borrower’s Indebtedness under the Secured Note Indenture.
“Secured Note Indenture” means that certain Indenture, dated as of May 19, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time) in respect of the $1,000,000,000 10.875% senior secured notes due 2023 and $2,320,000,000 11.50% senior secured notes due 2025, by and among the Borrower, as issuer, the guarantors party thereto from time to time, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee and as security agent.
“Security Trustee” means Citicorp Trustee Company Limited of Citigroup Centre, Canada Square, London E14 5LB in its capacity as security trustee for the purpose of the Escrow Account Security.
“Senior Debt Rating” means, as of any date, (a) the implied senior debt rating of the Borrower for debt pari passu in right of payment and in right of collateral security with the Obligations as given by 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).
“Senior Guarantee” means any guarantee by a New Guarantor of Indebtedness incurred by the Borrower or any of its Subsidiaries after the effectiveness of the Third Novation Agreement Supplement; provided that the aggregate principal amount of Indebtedness guaranteed under any Senior Guarantee shall in no case exceed 10.0% of the Purchase Price of the relevant Vessel owned by the Principal Subsidiary of such New Guarantor that acquired such Vessel.
“Senior Parties” means each agent, trustee or other representative in respect of Unsecured Note Indebtedness or DDTL Indebtedness.
“SFIL” means SFIL, a French société anonyme with is registered office at 1-3 rue du Passeur de Boulogne, 92130 Issy-les-Moulineaux, France, registered at the trade and companies registry of Nanterre under number 428 782 585.
“Signing Date” means the date of the Novation Agreement.
“Statement of Compliance” means a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.
“Spot Rate of Exchange” is as defined in the Novation Agreement.
“Stockholders’ Equity” means, as at any date, the Borrower’s stockholders’ equity on such date, excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP, provided that any non-cash charge to Stockholders’ Equity resulting (directly or indirectly) from a change after the Signing Date in GAAP or in the interpretation thereof shall be disregarded in the computation of Stockholders’ Equity such that the amount
    24


of any reduction thereof resulting from such change shall be added back to Stockholders’ Equity.
“Subordination Agreement” means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee executed by the Facility Agent and any of the Senior Parties or Other Senior Parties.
“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.
“Third Novation Agreement Supplement” means the supplemental agreement dated 13 November 2020 and made between, amongst others, the Original Borrower, the Borrower and the Facility Agent, pursuant to which the Novation Agreement was supplemented.
“Third Priority Assets” means the Vessels known on the date the Third Novation Agreement Supplement becomes effective as (i) Symphony of the Seas, (ii) Oasis of the Seas, (iii) Harmony of the Seas, (iv) Spectrum of the Seas, (v) Quantum of the Seas, (vi) Ovation of the Seas and (vii) Anthem of the Seas (it being understood that such Vessels shall remain “Third Priority Assets” regardless of any change in name or ownership after the such date).
“Third Priority Guarantee” means the third priority guarantee granted by RCI Holdings LLC prior to the Effective Time (and any other third priority guarantee granted by a Third Priority Holdco Subsidiary in connection with becoming a Third Priority Guarantor) in favor of the Facility Agent for the benefit of the Agent and the Lenders, in each case substantially in the form attached hereto as Exhibit I.
“Third Priority Guarantor” means RCI Holdings LLC (and any of its successors) and any other Third Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Third Priority Holdco Subsidiary pursuant to a Disposal of a Third Priority Asset in accordance with Section 7.2.5(c)(iii)(A), will grant a Third Priority Guarantee.
“Third Priority Holdco Subsidiaries” means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Third Priority Asset.
“Third Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Unsecured Note Indebtedness and the DDTL Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being, in aggregate, $1,700,000,000):
(a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
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(b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Third Priority Guarantor in respect of the Unsecured Note Indebtedness, the DDTL Indebtedness and the Bank Indebtedness.
Notwithstanding the foregoing, a Third Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Third Priority Release Event would have occurred but for the continuance of the payment default described above, then a Third Priority Release Event will occur immediately upon that payment default being remedied.
“UK Bail-In Legislation” means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 of Directive 2014/59/EU) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“Unpaid Non-Yard Costs” means, as at the Actual Delivery Date, the amount in Euro of the Non-Yard Costs which have not been paid for by the Borrower and/or where applicable, supplied, installed and completed on the Purchased Vessel as at the Actual Delivery Date and as determined in accordance with the relevant amounts certified in the Delivery Non-Yard Costs Certificate.
“US Dollar Equivalent” means (i) for all EUR amounts payable in respect of the Additional Advances for the amount of the Non-Yard Costs or the Other Basic Contract Price Increases referred to in clause 5.2(a) of the Novation Agreement (and disregarding for the purposes of this definition that the Additional Advance in respect of such amounts shall be drawn in Dollars), such EUR amounts converted to a corresponding Dollar amount at the Weighted Average Rate of Exchange and (ii) for the EUR amount payable in respect of the Additional Advance for the BpiFAE Premium referred to in clause 5.2(b) of the Novation Agreement and for the calculation and payment of the Novated Loan Balance (as defined in the Novation Agreement), the amount thereof in EUR converted to a corresponding Dollar amount as determined by the Facility Agent on the basis of the Spot Rate of Exchange. Such rate of exchange under (i) above shall be evidenced by foreign exchange counterparty confirmations to the extent applicable. The US Dollar Equivalent of the Maximum Loan Amount shall be calculated by the Borrower in consultation with the Facility Agent no less than two (2) Business Days prior to the proposed Actual Delivery Date.
“United States” or “U.S.” means the United States of America, its fifty States and the District of Columbia.
“Unsecured Note Indebtedness” means the Borrower’s Indebtedness under the Unsecured Note Indenture.
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“Unsecured Note Indenture” means that certain Indenture, dated as of June 9, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time) in respect of the $1,000,000,000 9.125% senior notes due 2023, by and among the Borrower, as issuer, the guarantor party thereto, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee.
“Vessel” means a passenger cruise vessel owned by a Group Member.
“Weighted Average Rate of Exchange” means the weighted average rate of exchange that the Borrower has agreed, either in the spot or forward currency markets, to pay its counterparties for the purchase of the relevant amounts of euro with Dollars for the payment of the euro amount of the Contract Price (including the portion thereof comprising the change orders, any Other Basic Contract Price Increases and the Non-Yard Costs) and including in such weighted average calculation (a) the NYC Applicable Rate (as defined in the Novation Agreement) in relation to the portion of the Contract Price comprising the Non-Yard Costs and (b) the spot rates for any other euro amounts that have not been hedged by the Borrower.
“Write-Down and Conversion Powers” means: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule; and (b) in relation to any UK Bail-In Legislation: (i) any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and (ii) any similar or analogous powers under that UK Bail-In Legislation.
SECTION 1.2.    Use of Defined Terms. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall, when capitalized, have such meanings when used in the Loan Request and each notice and other communication delivered from time to time in connection with this Agreement or any other Loan Document.
SECTION 1.3.    Cross-References. Unless otherwise specified, references in this Agreement and in each other Loan Document to any Article or Section are references to such Article or Section of this Agreement or such other Loan Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.
SECTION 1.4.    Accounting and Financial Determinations. Unless otherwise specified, all accounting terms used herein or in any other Loan Document shall be interpreted, all accounting determinations and computations hereunder or thereunder (including under Section 7.2.4) shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with United States generally accepted accounting principles (“GAAP”) consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies); provided that if the
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Borrower elects to apply or is required to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP, upon any such election and notice to the Facility Agent, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided further that if, as a result of (i) any change in GAAP or IFRS or in the interpretation thereof or (ii) the application by the Borrower of IFRS in lieu of GAAP, in each case, after the date of the financial statements referred to in Section 6.15, there is a change in the manner of determining any of the items referred to herein or thereunder that are to be determined by reference to GAAP, and the effect of such change would (in the reasonable opinion of the Borrower or the Facility Agent) be such as to affect the basis or efficacy of the financial covenants contained in Section 7.2.4 in ascertaining the consolidated financial condition of the Borrower and its Subsidiaries and the Borrower notifies the Facility Agent that the Borrower requests an amendment to any provision hereof to eliminate such change occurring after the date hereof in GAAP or the application thereof on the operation of such provision (or if the Facility Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), then such item shall for the purposes of Section 7.2.4 continue to be determined in accordance with GAAP relating thereto as if GAAP were applied immediately prior to such change in GAAP or in the interpretation thereof until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding the foregoing, all obligations of any person that are or would be characterized as operating lease obligations in accordance with GAAP on the B34 Facility Amendment Date (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations for the purposes of this Agreement regardless of any change in GAAP following the B34 Facility Amendment Date that would otherwise require such obligations to be recharacterized (on a prospective or retroactive basis or otherwise) as capital leases, provided that, for clarification purposes, operating leases recorded as liabilities on the balance sheet due to a change in accounting treatment, or otherwise, shall for all purposes not be treated as Indebtedness, Capital Lease Obligations or Capitalized Lease Liabilities.
ARTICLE II

COMMITMENTS AND BORROWING PROCEDURES
SECTION 2.1.    Commitment. On the terms and subject to the conditions of this Agreement (including Article V), each Lender severally agrees to make its portion of the Loan pursuant to its Commitment described in Section 2.2. No Lender’s obligation to make its portion of the Loan shall be affected by any other Lender’s failure to make its portion of the Loan.
SECTION 2.2.    Commitment of the Lenders; Termination and Reduction of Commitments.
(a)    Each Lender will make its portion of the Loan available to the Borrower in accordance with Section 2.3 on the Actual Delivery Date. The commitment of each Lender described in this Section 2.2 (herein referred to as its “Commitment”) shall be the commitment of such Lender to make available to the Borrower its portion of the Loan hereunder expressed as the initial amount set forth opposite such Lender’s name on its signature page attached hereto or, in the case of any Lender that becomes a Lender pursuant to an assignment pursuant to Section 11.11.1, the amount set forth as such Lender’s Commitment in the related Lender Assignment Agreement, in each case as such amount may
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be reduced from time to time pursuant clause 10.2 of the Novation Agreement or reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.11.1. Notwithstanding the foregoing, each Lender’s Commitment shall terminate on the earlier of (i) the Commitment Termination Date if the Purchased Vessel is not delivered prior to such date and (ii) the Actual Delivery Date.
(b)    If any Lender shall default in its obligations under Section 2.1, the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Lender.
SECTION 2.3.    Borrowing Procedure.
(a)    Part of the Loan in an amount equal to the Novated Loan Balance shall be assumed by the Borrower and be deemed to be advanced to, and borrowed by the Borrower, pursuant to the provisions of clause 3 of the Novation Agreement and thereafter converted into Dollars pursuant to clause 5.1 of the Novation Agreement.
(b)    In relation to the amount of the Loan comprised by the Additional Advances, the Borrower shall deliver a Loan Request and the documents required to be delivered pursuant to Section 5.1.1(a) to the Facility Agent on or before 3:00 p.m., London time, not less than two (2) Business Days prior to the anticipated Actual Delivery Date. The Additional Advances shall be drawn in Dollars.
(c)    The Facility Agent shall promptly notify each Lender of the Loan Request in respect of the Additional Advances by forwarding a copy thereof to each Lender, together with its attachments. On the terms and subject to the conditions of this Agreement, the portion of the Loan in respect of the Additional Advances shall be made on the Actual Delivery Date. On or before 11:00 a.m., London time, on the Actual Delivery Date, the Lenders shall, without any set-off or counterclaim, deposit with the Facility Agent same day funds in an amount equal to such Lender’s Percentage of the requested portion of the Additional Advances in Dollars. Such deposits will be made to such account which the Facility Agent shall specify from time to time by notice to the Lenders. To the extent funds are so received from the Lenders (and having regard, where applicable, to Sections 2.3(d), (e) and (f) below), the Facility Agent shall, without any set-off or counterclaim, make such funds available to the Borrower on the Actual Delivery Date by wire transfer of same day funds to the accounts the Borrower shall have specified in its Loan Request.
(d)    If the Borrower elects to finance that part of the BpiFAE Premium payable by the Borrower with an Additional Advance under clause 5.2(b)(i) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request. The amount of the advance in Dollars (the “US Dollar BpiFAE Advance Amount”) that will fund the BpiFAE Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the BpiFAE Premium to be financed with such advance, which amount shall be determined by the Facility Agent based on the Spot Rate of Exchange. The Facility Agent shall notify the Borrower and the Lenders of the US Dollar BpiFAE Advance
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Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar BpiFAE Advance Amount with the Facility Agent in accordance with Section 2.3(c). The Facility Agent shall furnish a certificate to the Borrower on the date such Loan Request is delivered setting forth such Spot Rate of Exchange, its derivation and the calculation of the US Dollar BpiFAE Advance Amount. If the Borrower elects to so finance the BpiFAE Premium, the Borrower will be deemed to have directed the Facility Agent to pay over directly to BpiFAE on behalf of the Borrower that portion of the EUR amount of the BpiFAE Premium to be financed with the proceeds of the advance on the Actual Delivery Date and to retain for its own account deposits made by the Lenders in Dollars in an amount equal to the portion of the US Dollar BpiFAE Advance Amount attributable to the BpiFAE Premium paid by the Facility Agent to BpiFAE on behalf of the Borrower.
(e)    If the Borrower elects to finance that part of the BpiFAE Premium payable by the Borrower with an Additional Advance under clause 5.2(b)(ii) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request (and whether it wishes to receive such amount in EUR or in Dollars). The amount of the advance in Dollars (the “US Dollar BpiFAE Balance Amount”) that will fund the BpiFAE Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the BpiFAE Premium to be financed with such advance, which amount shall be determined by the Facility Agent based on the Spot Rate of Exchange. The Facility Agent shall notify the Borrower and the Lenders of the US Dollar BpiFAE Balance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar BpiFAE Balance Amount with the Facility Agent in accordance with Section 2.3(c). The Facility Agent shall furnish a certificate to the Borrower on the date such Loan Request is delivered setting forth such Spot Rate of Exchange, its derivation and the calculation of the US Dollar BpiFAE Balance Amount. If the Borrower elects to so finance the BpiFAE Premium and receive the proceeds in EUR, the Borrower will be deemed to have directed the Facility Agent to pay over to the Borrower that portion of the EUR amount of the BpiFAE Premium to be financed with the proceeds of the advance on the Actual Delivery Date and to retain for its own account deposits made by the Lenders in Dollars in an amount equal to the US Dollar BpiFAE Balance Amount.
(f)    In relation to any Additional Advance that is to be advanced to the Borrower in respect of the Non-Yard Costs it is agreed that:
(i)    an amount equal to the US Dollar Equivalent of eighty per cent (80%) of the Paid Non-Yard Costs shall be advanced to the Borrower on the Actual Delivery Date in accordance with the provisions of Section 2.3(c), which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery Non-Yard Costs Certificate; and
(ii)    an amount equal to the US Dollar Equivalent of eighty per cent (80%) of the Unpaid Non-Yard Costs, which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery
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Non-Yard Costs Certificate (the “Escrow Amount”), shall be remitted by the Facility Agent (and the Borrower hereby instructs the Facility Agent to make such remittance) to the Escrow Account and such amount shall be regulated in accordance with the following provisions of this Section 2.3(f) and the Escrow Account Security,
subject to the aggregate of the amounts referred to in i) and ii) above not exceeding the Maximum Non-Yard Costs Amount.
Where an Escrow Amount payment is made to the Escrow Account pursuant to (ii) above, the Borrower shall be entitled at any time prior to the NYC Cut Off Date to provide the Facility Agent with the Final Non-Yard Cost Certificate setting out the final amount of the Paid Non-Yard Costs. Where the Final Non-Yard Costs Certificate is so received by the Facility Agent, the Facility Agent shall determine promptly the US Dollar Equivalent of the EUR amount of the Paid Non-Yard Costs and within one Business Day thereafter shall authorize the release of the Escrow Amount (or, if less, an amount equal to the US Dollar Equivalent of eighty per cent of the final amount of the Paid Non-Yard Costs (as determined above) less the amount previously advanced to the Borrower under (i) above) to the Borrower. Any interest accruing on the Escrow Account shall be released to the Borrower at the same time as the release of the Escrow Amount (or, if applicable, part thereof) to the Borrower pursuant to this provision.
If any amount of the Escrow Amount remains on the Escrow Account on the day falling immediately after the NYC Cut Off Date (having regard to any applicable permitted release of moneys from the Escrow Account to the Borrower referred to above) then on the Business Day thereafter the Facility Agent shall be entitled to request the withdrawal of that amount from the Escrow Account and shall apply the amount so received, on behalf of the Borrower, in or towards prepayment of the Loan.
The basis on which the Escrow Account Security is held by the Security Trustee for the benefit of the Lenders is regulated under the Escrow Agency and Trust Deed.
SECTION 2.4.    Funding. Each Lender may, if it so elects, fulfill its obligation to make or continue its portion of the Loan hereunder by causing a branch or Affiliate (or an international banking facility created by such Lender) other than that indicated next to its signature to this Agreement or, as the case may be, in the relevant Lender Assignment Agreement, to make or maintain such portion of the Loan; provided that such portion of the Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay such portion of the Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility; provided, further, that the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had the Lender not caused such branch or Affiliate (or international banking facility) to make or maintain such portion of the Loan.
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ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1.    Repayments.
(a)    The Borrower shall repay the Loan in 24 equal semi-annual installments, with the first installment to fall due on the date falling six (6) months after the Actual Delivery Date and the final installment to fall due on the date of Final Maturity.
(b)    No such amounts repaid by the Borrower pursuant to this Section 3.1 may be re-borrowed under the terms of this Agreement.
SECTION 3.2.    Prepayment.
(a)    The Borrower
(i)    may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of the Loan; provided that:
(A)    all such voluntary prepayments shall require at least five (5) Business Days’ prior written notice to the Facility Agent; and
(B)    all such voluntary partial prepayments shall be in an aggregate minimum amount of $10,000,000 and a multiple of $1,000,000 (or in the remaining amount of the Loan) and shall be applied in inverse order of maturity or ratably among all remaining installments, as the Borrower shall designate to the Facility Agent, in satisfaction of the remaining repayment installments of the Loan; and
(ii)    shall, immediately upon any acceleration of the repayment of the installments of the Loan pursuant to Section 8.2 or 8.3 or the mandatory prepayment of the Loan pursuant to Section 9.2, repay the Loan.
(b)    If it becomes unlawful in any jurisdiction for any Lender to perform any of its obligations under the Loan Documents or to maintain or fund its portion of the Loan, the affected Lender may give written notice (the “Illegality Notice”) to the Borrower and the Facility Agent of such event, including reasonable details of the relevant circumstances.
(c)    If an affected Lender delivers an Illegality Notice, the Borrower, the Facility Agent and the affected Lender shall discuss in good faith (but without obligation) what steps may be open to the relevant Lender to mitigate or remove such circumstances but, if they are unable to agree such steps within 20 Business Days or if the Borrower so elects, the Borrower shall have the right, but not the obligation, exercisable at any time within 50 days after receipt of such Illegality Notice or, if earlier, the date upon which the unlawful event referred to in (b) above will apply (but not being a date falling earlier than the end of the 20 Business Day period referred to above) (the “Option Period”), either (1) to prepay the portion of the Loan held by such Lender in full on or before the
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expiry of the Option Period, together with all unpaid interest and fees thereon accrued to but excluding the date of such prepayment, or (2) to replace such Lender on or before the expiry of the Option Period with one or more financial institutions (I) acceptable to the Facility Agent (such consent not to be unreasonably withheld or delayed) and (II) where relevant, eligible to benefit from an Interest Stabilisation Agreement, pursuant to assignment(s) notified to and consented in writing by BpiFAE and, where relevant Natixis DAI, provided that (x) in the case of a single assignment, any such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or, in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement and (y) no Lender shall be obliged to make any such assignment as a result of an election by the Borrower pursuant to this Section 3.2(c) unless and until such Lender shall have received one or more payments from one or more Assignee Lenders and/or the Borrower in an aggregate amount at least equal to the portion of the Loan held by such Lender, together with all unpaid interest and fees thereon accrued to but excluding the date of such assignment (and all other amounts then owing to such Lender under this Agreement).
Each prepayment of the Loan made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4. No amounts prepaid by the Borrower may be re-borrowed under the terms of this Agreement.
SECTION 3.3.    Interest Provisions. Interest on the outstanding principal amount of the Loan shall accrue and be payable in accordance with this Section 3.3.
SECTION 3.3.1    Rates. The Loan shall accrue interest from the Actual Delivery Date to the date of repayment or prepayment of the Loan in full to the Lenders at either the Fixed Rate or, where the proviso to Section 5.1.10 applies, the Floating Rate. Interest calculated at the Fixed Rate or the Floating Rate shall (having regard in the case of a Defaulting Lender to Section 10.3(b)) be payable in arrears on each Repayment Date. The Loan shall bear interest from and including the first day of the applicable Interest Period to (but not including) the last day of such Interest Period at the interest rate determined as applicable to the Loan. All interest shall be calculated on the basis of the actual number of days elapsed over a year comprised of 360 days.
SECTION 3.3.2    [Intentionally omitted]
SECTION 3.3.3    Interest Stabilisation. Each Lender who is a party hereto on the Restatement Date represents and warrants to the Borrower that it has entered into an Interest Stabilisation Agreement and any Lender not a party hereto on the Restatement Date (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1(iv)) represents and warrants to the Borrower on the date that such Lender becomes a party hereto that it has entered into an Interest Stabilisation Agreement on or prior to becoming a party hereto.

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SECTION 3.3.4    Post-Maturity Rates. After the date any principal amount of the Loan is due and payable (whether on any Repayment Date, upon acceleration or otherwise), or after any other monetary Obligation of the Borrower shall have become due and payable, the Borrower shall pay, but only to the extent permitted by law, interest (after as well as before judgment) on such amounts for each day during the period of such default at a rate per annum certified by the Facility Agent to the Borrower (which certification shall be conclusive in the absence of manifest error) to be equal to the sum of the Floating Rate plus 1.5% per annum.
SECTION 3.3.5    Payment Dates. Interest accrued on the Loan shall be payable, without duplication, on the earliest of:
(a)    each Interest Payment Date;
(b)    each Repayment Date;
(c)    the date of any prepayment, in whole or in part, of principal outstanding on the Loan (but only on the principal so prepaid); and
(d)    on that portion of the Loan the repayment of which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.
SECTION 3.3.6    Interest Rate Determination; Replacement Reference Banks. Where Section 3.3.4 or the Floating Rate applies, the Facility Agent shall obtain from each Reference Bank timely information for the purpose of determining the LIBO Rate in the event that no offered quotation appears on Thomson Reuters LIBOR01 Page (or any successor page) and the LIBO Rate is to be determined by reference to quotations supplied by the Reference Banks and not by reference to the Historic Screen Rate. If any one or more of the Reference Banks shall fail to furnish in a timely manner such information to the Facility Agent for any such interest rate, the Facility Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Banks. If the Borrower elects to add an additional Reference Bank hereunder or a Reference Bank ceases for any reason to be able and willing to act as such, the Facility Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Bank reasonably acceptable to the Borrower, and such replaced Reference Bank shall cease to be a Reference Bank hereunder. The Facility Agent shall furnish to the Borrower and to the Lenders each determination of the LIBO Rate made by reference to quotations of interest rates furnished by Reference Banks (it being understood that the Facility Agent shall not be required to disclose to any party hereto (other than the Borrower) any information regarding any Reference Bank or any rate quoted by a Reference Bank, including, without limitation, whether a Reference Bank has provided a rate or the rate provided by any individual Reference Bank).
Interest accrued on the Loan or other monetary Obligations arising under this Agreement or any other Loan Document after the date such amount is due and payable (whether upon acceleration or otherwise) shall be payable upon demand.
SECTION 3.3.7    Unavailability of the LIBO Rate.
Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Facility Agent determines (which determination shall, in the absence
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of manifest error, be conclusive) or the Borrower or the Required Lenders notify the Facility Agent (with, in the case of the Required Lenders, a copy to Borrower) that the Borrower or the Required Lenders (as applicable) have determined that:
(a)    adequate and reasonable means would not exist for ascertaining (should the Floating Rate apply) the LIBO Rate for the relevant Interest Period including, without limitation, because the LIBO Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(b)    the administrator of the LIBO Rate or a governmental authority having jurisdiction over the Facility Agent has made a public statement identifying a specific date after which the LIBO Rate shall no longer be made available or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”); or
(c)    syndicated loans currently being executed, or existing syndicated loans that include language similar to that contained in this Section 3.3.7, are being executed and/or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate,
then, reasonably promptly after such determination by the Facility Agent or receipt by the Facility Agent of such notice, as applicable, or if the Borrower otherwise requests, the Facility Agent and the Borrower may amend this Agreement to replace the LIBO Rate with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBO Successor Rate”), and also together with any proposed LIBO Successor Rate Conforming Changes (as defined below) and any such amendment shall become effective at 5:00 P.M. (London time) on the fifth (5) Business Day after the Facility Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Facility Agent written notice that such Required Lenders do not accept such amendment. Such LIBO Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Facility Agent, such LIBO Successor Rate shall be applied in a manner as otherwise reasonably determined by the Facility Agent.
If no LIBO Successor Rate has been determined and the circumstances under paragraph a) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Facility Agent will promptly notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to fund or maintain the relevant portion of the Loan at the LIBO Rate (to the extent of the affected part of the Loan or Interest Periods) shall be suspended. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of any part of the Loan (to the extent of the affected part of the Loan or Interest Periods).
Notwithstanding anything else herein, any definition of LIBO Successor Rate shall provide that in no event shall such LIBO Successor Rate be less than zero for purposes of this Agreement.
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The Facility Agent (acting on the instructions of the Required Lenders) and the Borrower shall, during the period between 1 April 2021 and 30 June 2022 (or such later date as may be agreed between the Required Lenders and the Borrower), enter into negotiations in good faith with a view to agreeing a basis upon which a LIBO Successor Rate can be used in replacement of the LIBO Rate, together with any associated LIBO Successor Rate Conforming Changes, and a timetable for the implementation of these changes so that the appropriate changes can be made prior to the Scheduled Unavailability Date.
For the purposes of this Agreement, “LIBO Successor Rate Conforming Changes” means, with respect to any proposed LIBO Successor Rate, any conforming changes to the definition of Floating Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Facility Agent in consultation with the Borrower, to reflect the adoption of such LIBO Successor Rate and to permit the administration thereof by the Facility Agent in a manner substantially consistent with market practice (or, if the Facility Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBO Successor Rate exists, in such other manner of administration as the Facility Agent determines is reasonably necessary in connection with the administration of this Agreement).
SECTION 3.4.    Commitment Fees. Subject to clause 10.1 of the Novation Agreement, the Borrower agrees to pay to the Facility Agent for the account of each Lender a commitment fee (the “Commitment Fee”) on its daily unused portion of Maximum Loan Amount (as such amount may be adjusted from time to time), for the period commencing on the Signing Date and continuing through the earliest to occur (the “Commitment Fee Termination Date”) of (i) the Actual Delivery Date, (ii) the date upon which the Facility Agent has provided the Borrower with written notice that the Lenders will not advance the Loan because the Commitments have been terminated pursuant to Section 8.2 or 8.3, (iii) the Commitment Termination Date and (iv) the date the Commitments shall have been terminated in full pursuant to clause 10.2 of the Novation Agreement.
SECTION 3.4.1    Payment. The Commitment Fee shall be payable by the Borrower to the Facility Agent for the account of each Lender six-monthly in arrears, with the first such payment (the “First Commitment Fee Payment”) to be made on the day falling six months following the Signing Date and the final such payment to be made on the Commitment Fee Termination Date (each date on which a Commitment Fee payment is required to be made in accordance with this Section 3.4.1 referred to herein as a “Commitment Fee Payment Date”). The Commitment Fee shall be in the amount in EUR equal to the product of the Applicable Commitment Rate, multiplied by, for each day elapsed since the preceding Commitment Fee Payment Date (or, in the case of the First Commitment Fee Payment, the Signing Date), 75% of the daily unused portion of Maximum Loan Amount (as such amount may be adjusted from time to time), divided by 360 days.
SECTION 3.5.    Other Fees. The Borrower agrees to pay to the Facility Agent the agreed-upon fees set forth in the Fee Letters on the dates and in the amounts set forth therein.
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ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1.    LIBO Rate Lending Unlawful. If after the Signing Date the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other governmental authority having jurisdiction over such Lender asserts that it is unlawful for such Lender to make, continue or maintain its portion of the Loan where the relevant Lender has funded itself in the interbank market at a rate based on the LIBO Rate, the obligation of such Lender to make, continue or maintain its portion of the Loan shall, upon notice thereof to the Borrower, the Facility Agent and each other Lender, forthwith be suspended until the circumstances causing such suspension no longer exist, provided that such Lender’s obligation to make, continue and maintain its portion of the Loan hereunder shall be automatically converted into an obligation to make, continue and maintain its portion of the Loan bearing interest at a rate to be negotiated between such Lender and the Borrower that is the equivalent of the sum of the LIBO Rate for the relevant Interest Period plus the Floating Rate Margin.
SECTION 4.2.    Deposits Unavailable. If any Lender has funded itself in the interbank market and the Facility Agent shall have determined that:
(a)    Dollar deposits in the relevant amount and for the relevant Interest Period are not available to each Reference Bank in its relevant market, or
(b)    by reason of circumstances affecting the Reference Banks’ relevant markets, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate loans for the relevant Interest Period, or
(c)    the cost to Lenders that in the aggregate hold more than 50% of the aggregate outstanding principal amount of the Loan then held by Lenders of obtaining matching deposits in the relevant interbank market for the relevant Interest Period would be in excess of the LIBO Rate, (provided, that no Lender may exercise its rights under this Section 4.2(c) for amounts up to the difference between such Lender’s cost of obtaining matching deposits on the date such Lender becomes a Lender hereunder less the LIBO Rate on such date),
then the Facility Agent shall give notice of such determination (hereinafter called a “Determination Notice”) to the Borrower and each of the Lenders. The Borrower, the Lenders and the Facility Agent shall then negotiate in good faith in order to agree upon a mutually satisfactory interest rate and interest period (or interest periods) to be substituted for those which would otherwise have applied under this Agreement. If the Borrower, the Lenders and the Facility Agent are unable to agree upon an interest rate (or rates) and interest period (or interest periods) prior to the date occurring fifteen (15) Business Days after the giving of such Determination Notice, the Facility Agent shall (after consultation with the Lenders) set an interest rate and an interest period (or interest periods), in each case to take effect at the end of the Interest Period current at the date of the Determination Notice, which rate (or rates) shall be equal to the sum of the Floating Rate Margin and the weighted average of the corresponding interest rates at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period on Thomson Reuters’ pages KLIEMMM, GARBIC01 and FINA01 (or such other pages as may replace Thomson Reuters’ pages KLIEMMM, GARBIC01 or FINA01 on Thomson Reuters’ service) (or, in the
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case of clause (c) above, the lesser of (x) the respective cost to the Lenders of funding the respective portions of the Loan held by the Lenders and (y) such weighted average). The Facility Agent shall furnish a certificate to the Borrower as soon as reasonably practicable after the Facility Agent has given such Determination Notice setting forth such rate(s). In the event that the circumstances described in this Section 4.2 shall extend beyond the end of an interest period agreed or set pursuant hereto, the foregoing procedure shall be repeated as often as may be necessary.
SECTION 4.3.    Increased LIBO Rate Loan Costs, etc. If after the Signing Date a change in any applicable treaty, law, regulation or regulatory requirement or in the interpretation thereof or in its application to the Borrower, or if compliance by any Lender with any applicable direction, request, requirement or guideline (whether or not having the force of law) of any governmental or other authority including, without limitation, any agency of the European Union or similar monetary or multinational authority insofar as it may be changed or imposed after the date hereof, shall:
(a)    subject any Lender to any taxes, levies, duties, charges, fees, deductions or withholdings of any nature with respect to its portion of the Loan or any part thereof imposed, levied, collected, withheld or assessed by any jurisdiction or any political subdivision or taxing authority thereof (other than taxation on overall net income and, to the extent such taxes are described in Section 4.6, withholding taxes); or
(b)    change the basis of taxation to any Lender (other than a change in taxation on the overall net income of any Lender) of payments of principal or interest or any other payment due or to become due pursuant to this Agreement; or
(c)    impose, modify or deem applicable any reserve or capital adequacy requirements (other than the increased capital costs described in Section 4.5 and the reserve costs described in Section 4.7) or other banking or monetary controls or requirements which affect the manner in which a Lender shall allocate its capital resources to its obligations hereunder or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender (provided that such Lender shall, unless prohibited by law, allocate its capital resources to its obligations hereunder in a manner which is consistent with its present treatment of the allocation of its capital resources); or
(d)    impose on any Lender any other condition affecting its portion of the Loan or any part thereof,
and the result of any of the foregoing is either (i) to increase the cost to such Lender of making its portion of the Loan or maintaining its portion of the Loan or any part thereof, (ii) to reduce the amount of any payment received by such Lender or its effective return hereunder or on its capital or (iii) to cause such Lender to make any payment or to forego any return based on any amount received or receivable by such Lender hereunder, then and in any such case if such increase or reduction in the opinion of such Lender materially affects the interests of such Lender, (A) such Lender shall (through the Facility Agent) notify the Borrower of the occurrence of such event and use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the
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CIRR) to designate a different Lending Office if the making of such a designation would avoid the effects of such law, regulation or regulatory requirement or any change therein or in the interpretation thereof and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (B) the Borrower shall forthwith upon such demand pay to the Facility Agent for the account of such Lender such amount as is necessary to compensate such Lender for such additional cost or such reduction and ancillary expenses, including taxes, incurred as a result of such adjustment. Such notice shall (i) describe in reasonable detail the event leading to such additional cost, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such additional cost, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such 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. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstance giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such cost or reductions and of such Lender’s intention to claim compensation therefor.
It is acknowledged that the Borrower shall have no liability to compensate any Lender under this Section for amounts of increased costs that accrue before the Effective Time on the Actual Delivery Date (with any such amounts arising before the Effective Time being the responsibility of the Original Borrower).
SECTION 4.4.    Funding Losses.
SECTION 4.4.1    Indemnity. In the event any Lender shall incur any loss or expense (for the avoidance of doubt excluding loss of profit) by reason of the liquidation or re-employment (at not less than the market rate) of deposits or other funds acquired by such Lender, to make, continue or maintain any portion of the principal amount of its portion of the Loan as a result of:
(i)    any repayment or prepayment or acceleration of the principal amount of such Lender’s portion of the Loan, other than any repayment made on the date scheduled for such repayment or (if the Floating Rate applies) any repayment or prepayment or acceleration on a date other than the scheduled last day of an Interest Period or otherwise scheduled date for repayment or payment; or
(ii)    the relevant portion of the Loan not being made in accordance with the Loan Request therefor due to the fault of the Borrower or as a result of any of the conditions precedent set forth in clause 6.1(c) of the Novation Agreement and Article V not being satisfied,
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(a “Funding Losses Event”) then, upon the written notice of such Lender to the Borrower (with a copy to the Facility Agent), the Borrower shall, within three (3) days of its receipt thereof:
(a)    if at that time interest is calculated at the Floating Rate on such Lender’s portion of the Loan, pay directly to the Facility Agent for the account of such Lender an amount equal to the amount by which:
(i)    interest calculated at the Floating Rate (excluding the Floating Rate Margin) which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event for the period from the date of receipt of any part of its share in the Loan to the last day of the applicable Interest Period,
exceeds:
(ii)    the amount which such Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Interest Period; or
(b)    if at that time interest is calculated at the Fixed Rate on such Lender’s portion of the Loan, pay to the Facility Agent the amount notified to it following the calculation referred to in the next paragraph.
Since the Lenders commit themselves irrevocably to the French Authorities in charge of monitoring the CIRR mechanism, any prepayment (whether voluntary, involuntary or mandatory, including following the acceleration of the Loan) will be subject to the mandatory payment by the Borrower of the amount calculated in liaison with the French Authorities two (2) Business Days prior to the prepayment date by taking into account the differential (the “Rate Differential”) between the CIRR and the prevailing market yield (currently ISDAFIX) for each installment to be prepaid and applying such Rate Differential to the remaining residual period of such installment and discounting to the net present value as described below. Each of these Rate Differentials will be applied to the corresponding installment to be prepaid during the period starting on the date on which such prepayment is required to be made and ending on the original Repayment Date (as adjusted following any previous prepayments) for such installment and:
(A)    the net present value of each corresponding amount resulting from the above calculation will be determined at the corresponding market yield; and
(B)    if the cumulated amount of such present values is negative, no amount shall be due to the Borrower or from the Borrower.
Such written notice shall include calculations in reasonable detail setting forth the loss or expense to such Lender.
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SECTION 4.4.2    Exclusion. In the event that a Lender’s wilful misconduct or gross negligence has caused the loss or cancellation of the BpiFAE Insurance Policy, the Borrower shall not be liable to indemnify that Lender under Section 4.4.1 for its loss or expense arising due to the occurrence of the Prepayment Event referred to in Section 9.1.9.
SECTION 4.5.    Increased Capital Costs. If after the Signing Date any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority increases the amount of capital required to be maintained by any Lender or any Person controlling such Lender, and the rate of return on its or such controlling Person’s capital as a consequence of its Commitment or its portion of the Loan made by such Lender is reduced to a level below that which such Lender or such controlling Person would have achieved but for the occurrence of any such change in circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, the Borrower shall immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. Any such notice shall (i) describe in reasonable detail the capital adequacy requirements which have been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such lowered return, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such 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 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to designate a different Lending Office if the making of such a designation would avoid such reduction in such rate of return and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstance giving rise to such reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender’s intention to claim compensation therefor.
It is acknowledged that the Borrower shall have no liability to compensate any Lender under this Section for reduced returns that accrue before the Effective Time on the Actual Delivery Date (with any compensation liability to the Lenders arising before the Effective Time being the responsibility of the Original Borrower).
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SECTION 4.6.    Taxes. All payments by any Obligor of principal of, and interest on, the Loan and all other amounts payable under any Loan Document shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes imposed on or measured by any Lender’s net income or receipts of such Lender and franchise taxes imposed in lieu of net income taxes or taxes on receipts, by the jurisdiction under the laws of which such Lender is organized or any political subdivision thereof or the jurisdiction of such Lender’s Lending Office or any political subdivision thereof or any other jurisdiction unless such net income taxes are imposed solely as a result of the applicable Obligor’s activities in such other jurisdiction, and any taxes imposed under FATCA (such non-excluded items being called “Covered Taxes”). In the event that any withholding or deduction from any payment to be made by any Obligor under any Loan Document is required in respect of any Covered Taxes pursuant to any applicable law, rule or regulation, then the Borrower will:
(a)    pay directly to the relevant authority the full amount required to be so withheld or deducted;
(b)    promptly forward to the Facility Agent an official receipt or other documentation satisfactory to the Facility Agent evidencing such payment to such authority; and
(c)    pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
Moreover, if any Covered Taxes are directly asserted against the Facility Agent or any Lender with respect to any payment received or paid by the Facility Agent or such Lender hereunder, the Facility Agent or such Lender may pay such Covered Taxes and the Borrower will promptly pay such additional amounts (including any penalties, interest or expenses) as is necessary in order that the net amount received by such person after the payment of such Covered Taxes (including any Covered Taxes on such additional amount) shall equal the amount such person would have received had no such Covered Taxes been asserted.
Any Lender claiming any additional amounts payable pursuant to this Section agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to change the jurisdiction of its Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
If the Borrower fails to pay any Covered Taxes when due to the appropriate taxing authority or fails to remit to the Facility Agent for the account of the respective Lenders the required receipts or other required documentary evidence, the Borrower shall indemnify the Lenders for any incremental withholding Covered Taxes, interest or penalties that may become payable by any Lender as a result of any such failure (so long as such amount did not become payable as a result of the failure of such Lender to provide timely notice to the Borrower of the assertion of a liability related to the payment of Covered Taxes). For
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purposes of this Section 4.6, a distribution hereunder by the Facility Agent or any Lender to or for the account of any Lender shall be deemed a payment by the Borrower.
If any Lender is entitled to any refund, credit, deduction or other reduction in tax by reason of any payment made by the Borrower in respect of any Covered Tax under this Section 4.6 or by reason of any payment made by the Borrower pursuant to Section 4.3, such Lender shall use reasonable efforts to obtain such refund, credit, deduction or other reduction and, promptly after receipt thereof, will pay to the Borrower such amount (plus any interest received by such Lender in connection with such refund, credit, deduction or reduction) as is equal to the net after-tax value to such Lender of such part of such refund, credit, deduction or reduction as such Lender reasonably determines is allocable to such Covered Tax or such payment (less out-of-pocket expenses incurred by such Lender), provided that no Lender shall be obligated to disclose to the Borrower any information regarding its tax affairs or tax computations.
Each Lender (and each Participant) agrees with the Borrower and the Facility Agent that it will (i) in the case of a Lender or a Participant organized under the laws of a jurisdiction other than the United States (a) provide to the Facility Agent and the Borrower an appropriately executed copy of Internal Revenue Service Form W-8ECI certifying that any payments made to or for the benefit of such Lender or such Participant are effectively connected with a trade or business in the United States (or alternatively, an Internal Revenue Service Form W-8BEN claiming the benefits of a tax treaty, but only if the applicable treaty described in such form provides for a complete exemption from U.S. federal income tax withholding), or any successor form, on or prior to the date hereof (or, in the case of any Assignee Lender or Participant, on or prior to the date of the relevant assignment or participation), in each case attached to an Internal Revenue Service Form W-8IMY, if appropriate, (b) notify the Facility Agent and the Borrower if the certifications made on any form provided pursuant to this paragraph are no longer accurate and true in all material respects and (c) without prejudice to its obligations under Section 4.13, provide such other tax forms or other documents as shall be prescribed by applicable law, if any, or as otherwise reasonably requested, to demonstrate, to the extent applicable, that payments to such Lender (or Participant) hereunder are exempt from withholding under FATCA, and (ii) in all cases, provide such forms, certificates or other documents, as and when reasonably requested by the Borrower, necessary to claim any applicable exemption from, or reduction of, Covered Taxes or any payments made to or for benefit of such Lender or such Participant, provided that the Lender or Participant is legally able to deliver such forms, certificates or other documents. For any period with respect to which a Lender (or Assignee Lender or Participant) has failed to provide the Borrower with the foregoing forms (other than if such failure is due to a change in law occurring after the date on which a form originally was required to be provided (which, in the case of an Assignee Lender, would be the date on which the original assignor was required to provide such form) or if such form otherwise is not required hereunder) such Lender (or Assignee Lender or Participant) shall not be entitled to the benefits of this Section 4.6 with respect to Covered Taxes imposed by reason of such failure.
All fees and expenses payable pursuant to Section 11.3 shall be paid together with value added tax or any similar tax (if any) properly chargeable thereon. Any value added tax chargeable in respect of any services supplied by a Lender or an Agent under this Agreement shall, on delivery of the value added tax invoice, be paid in addition to any sum agreed to be paid hereunder.
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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, with effect from the Effective Time, pay to the Facility Agent for the account of each Lender on the last day of each Interest Period, so long as the relevant Lending Office of such Lender is required to maintain reserves against “Eurocurrency liabilities” under Regulation D of the F.R.S. Board, upon notice from such Lender, an additional amount equal to the product of the following for the Loan for each day during such Interest Period:
(i)    the principal amount of the Loan outstanding on such day; and
(ii)    the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on the Loan for such Interest Period as provided in this Agreement (less, if applicable, the Floating Rate Margin) and the denominator of which is one minus any increase after the Signing Date in the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender minus (y) such numerator; and
(iii)    1/360.
Such notice shall (i) describe in reasonable detail the reserve requirement that has been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the applicable reserve percentage, (iii) certify that such request is consistent with such 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 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to avoid the requirement of maintaining such reserves (including by designating a different Lending Office) if such efforts would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 4.8.    Payments, Computations, etc.
(a)    Unless otherwise expressly provided, all payments by any Obligor pursuant to any Loan Document shall be made by such Obligor to the Facility Agent for the pro rata account of the Lenders entitled to receive such payment. All such payments required to be made to the Facility Agent shall be made, without set-off, deduction or counterclaim, not later than 11:00 a.m., New York time, on the date due, in same day or immediately available funds through the New York Clearing House Interbank Payments System (or such other funds as may be customary for the settlement of international banking transactions in Dollars), to such account as the Facility Agent shall specify from time to time by notice to the Borrower. Funds received after that time shall be deemed to have been received by the Lenders on the next succeeding Business Day.
(b)    Each Lender hereby instructs the Facility Agent, with respect to any portion of the Loan held by such Lender, to pay directly to such Lender interest thereon at the Fixed Rate or (if the proviso to Section 5.1.10 applies) the Floating
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Rate, on the basis that (if the Fixed Rate applies) such Lender will, where amounts are payable to Natixis by that Lender under the Interest Stabilisation Agreement, account directly to Natixis for any such amounts payable by that Lender under the Interest Stabilisation Agreement to which such Lender is a party.
(c)    The Facility Agent shall promptly (but in any event on the same Business Day that the same are received or, as contemplated in clause (a) of this Section, deemed received) remit in same day funds to each Lender its share, if any, of such payments received by the Facility Agent for the account of such Lender without any set-off, deduction or counterclaim. All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days. Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing interest and fees, if any, in connection with such payment.
SECTION 4.9.    Replacement Lenders, etc. If the Borrower shall be required to make any payment to any Lender pursuant to Section 4.2(c), 4.3, 4.4, 4.5, 4.6 or 4.7, the Borrower shall be entitled at any time (so long as no Default and no Prepayment Event shall have occurred and be continuing) within 180 days after receipt of notice from such Lender of such required payment to (a) terminate such Lender’s Commitment (where upon the Percentage of each other Lender shall automatically be adjusted to an amount equal to such Lender’s ratable share of the remaining Commitments), (b) prepay the affected portion of such Lender’s Loan in full, together with accrued interest thereon through the date of such prepayment (provided that the Borrower shall not terminate any Lender’s Commitment pursuant to clause (a) or prepay any such Lender pursuant to this clause (b) without replacing such Lender pursuant to the following clause (c) until a 30-day period shall have elapsed during which the Borrower and the Facility Agent shall have attempted in good faith to replace such Lender), and/or (c) replace such Lender with another financial institution reasonably acceptable to the Facility Agent and (if the Fixed Rate applies) Natixis DAI, provided that (i) each such transfer shall be either a transfer of all of the rights and obligations of the transferring Lender under this Agreement or a transfer of a portion of such rights and obligations made concurrently with another such transfer or other such transfers that together cover all of the rights and obligations of the transferring Lender under this Agreement and (ii) no Lender shall be obligated to make any such transfer as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from either the Borrower or one or more Assignee Lenders in an aggregate amount at least equal to the aggregate outstanding principal amount of the Loan owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement. Each Lender represents and warrants to the Borrower that, as of the Signing Date (or, with respect to any Lender not a party hereto on the Signing Date, on the date that such Lender becomes a party hereto), there is no existing treaty, law, regulation, regulatory requirement, interpretation, directive, guideline, decision or request pursuant to which such Lender would be entitled to request any payments under any of Sections 4.3, 4.4, 4.5, 4.6 and 4.7 to or for account of such Lender.
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SECTION 4.10.    Sharing of Payments.
SECTION 4.10.1    Payments to Lenders. If a Lender (a “Recovering Lender”) receives or recovers any amount from an Obligor other than in accordance with Section 4.8 (Payments, Computations, etc.) (a “Recovered Amount”) and applies that amount to a payment due under the Loan Documents then:
(a)    the Recovering Lender shall, within three (3) Business Days, notify details of the receipt or recovery to the Facility Agent;
(b)    the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Lender would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with the said Section 4.8, without taking account of any taxes which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
(c)    the Recovering Lender shall, within three (3) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Lender as its share of any payment to be made, in accordance with any applicable provisions of this Agreement.
SECTION 4.10.2    Redistribution of payments. The Facility Agent shall treat the Sharing Payment as if it had been paid by the Borrower and distribute it between the Lenders (other than the Recovering Lender) (the “Sharing Lenders”) in accordance with the provisions of this Agreement towards the obligations of the Borrower to the Sharing Lenders.
SECTION 4.10.3    Recovering Lender’s rights. On a distribution by the Facility Agent under Section 4.10.2 of a payment received by a Recovering Lender from the relevant Obligor, as between that Obligor and the Recovering Lender, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by the relevant Obligor.
SECTION 4.10.4    Reversal of redistribution. If any part of the Sharing Payment received or recovered by a Recovering Lender becomes repayable and is repaid by that Recovering Lender, then:
(a)    each Sharing Lender shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Lender an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Sharing Payment which that Recovering Lender is required to pay) (the “Redistributed Amount”); and
(b)    as between the relevant Obligor and each relevant Sharing Lender, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by the relevant Obligor.
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SECTION 4.10.5    Exceptions.
(a)    This Section 4.10 shall not apply to the extent that the Recovering Lender would not, after making any payment pursuant to this Section 4.10, have a valid and enforceable claim against the relevant Obligor.
(b)    A Recovering Lender is not obliged to share with any other Lender any amount which the Recovering Lender has received or recovered as a result of taking legal or arbitration proceedings, if:
(i)    it notified the other Lender of the legal or arbitration proceedings; and
(ii)    the other Lender had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
SECTION 4.11.    Set-off. Upon the occurrence and during the continuance of an Event of Default or a Prepayment Event, each Lender shall have, to the extent permitted by applicable law, the right to appropriate and apply to the payment of the Obligations then due and owing to it any and all balances, credits, deposits, accounts or moneys of any Obligor 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 applicable Obligor and the Facility Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of set-off under applicable law or otherwise) which such Lender may have.
SECTION 4.12.    Use of Proceeds. The Borrower shall apply the proceeds of the Loan made available to the Borrower in respect of the Additional Advances for the purpose of making payments of, or reimbursing the Borrower for payments already made for, the amounts referred to in clauses 5.2, 5.3 and/or 5.4 of the Novation Agreement and, without limiting the foregoing, no proceeds of the Loan will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or any “margin stock”, as defined in F.R.S. Board Regulation U.
SECTION 4.13.    FATCA Information.
(a)    Subject to paragraph (c) below, each party (other than the Borrower) shall, within ten Business Days of a reasonable request by another party (other than the Borrower):
(i)    confirm to that other party whether it is:
(A)    a FATCA Exempt Party; or
(B)    not a FATCA Exempt Party;
(ii)    supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party
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reasonably requests for the purposes of that other party’s compliance with FATCA;
(iii)    supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other party’s compliance with any other law, regulation, or exchange of information regime.
(b)    If a party confirms to another party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.
(c)    Paragraph (a) above shall not oblige any Lender or the Facility Agent to do anything, and paragraph a)(iii) above shall not oblige any other party to do anything, which would or might in its reasonable opinion constitute a breach of:
(i)    any law or regulation;
(ii)    any fiduciary duty; or
(iii)    any duty of confidentiality.
(d)    If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such party shall be treated for the purposes of the Loan Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.
(e)    Each party may make a FATCA Deduction from a payment under this Agreement that it is required to be made by FATCA, and any payment required in connection with that FATCA Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
SECTION 4.14.    Resignation of the Facility Agent. The Facility Agent shall resign (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent) if, either:
(a)    the Facility Agent fails to respond to a request under Section 4.13 and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
(b)    the information supplied by the Facility Agent pursuant to Section 4.13 indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party; or
(c)    the Facility Agent notifies the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
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and (in each case) a Lender reasonably believes that a party to this Agreement will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and that Lender, by notice to the Facility Agent, requires it to resign.
ARTICLE V

CONDITIONS TO BORROWING
SECTION 5.1.    Advance of the Loan. The obligation of the Lenders to fund the relevant portion of the Loan to be made available on the Actual Delivery Date shall be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in this Section 5.1. The Facility Agent shall advise the Lenders of the satisfaction of the conditions precedent set forth in this Section 5.1 prior to funding on the Actual Delivery Date.
SECTION 5.1.1    Resolutions, etc. The Facility Agent shall have received from the Borrower:
(a)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorized to act with respect to this Agreement and each other Loan Document and as to the truth and completeness of the attached:
(x)    resolutions of its Board of Directors then in full force and effect authorizing the execution, delivery and performance of this Agreement and each other Loan Document, and
(y)    Organic Documents of the Borrower,
and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the Borrower canceling or amending such prior certificate; and
(b)    a certificate of good standing issued by the relevant Liberian authorities in respect of the Borrower.
SECTION 5.1.2    Opinions of Counsel. The Facility Agent shall have received opinions, addressed to the Facility Agent, the Security Trustee (in relation to (a) and (b) below) and each Lender from:
(a)    Watson Farley & Williams LLP, counsel to the Borrower, as to Liberian Law, covering the matters set forth in Exhibit B-1 hereto (and which shall be updated to include reference to the Escrow Account Security);
(b)    Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders, covering the matters set forth in Exhibit B-2 hereto (and which shall be updated to include reference to the Escrow Account Security) and, if the BpiFAE Insurance Policy is to be re-issued or replaced on or about the Actual Delivery Date, Exhibit B-3 hereto; and

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(c)    Clifford Chance US LLP, United States tax counsel to the Facility Agent for the benefit of the Lenders, covering the matters set forth in Exhibit B-4 hereto,
each such opinion to be updated to take into account all relevant and applicable Loan Documents at the time of issue thereof.
SECTION 5.1.3    BpiFAE Insurance Policy. The Facility Agent or the ECA Agent shall have received the BpiFAE Insurance Policy duly issued and BpiFAE shall not have, prior to the advance of the Loan, delivered to the Facility Agent or the ECA Agent any notice seeking the cancellation, suspension or termination of the BpiFAE Insurance Policy or the suspension of the drawing of the Additional Advances under this Agreement.
SECTION 5.1.4    Closing Fees, Expenses, etc. The Facility Agent shall have received for its own account, or for the account of each Lender or BpiFAE, as the case may be, all fees that the Borrower shall have agreed in writing to pay to the Facility Agent (whether for its own account or for the account of any of the Lenders) that are due and owing as of the date of such funding and all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent and the BpiFAE Premium) required to be paid by the Borrower pursuant to Section 11.3 or that the Borrower has otherwise agreed in writing to pay to the Facility Agent, in each case on or prior to the date of such funding.
SECTION 5.1.5    Compliance with Warranties, No Default, etc. Both before and after giving effect to the funding of the Loan the following statements shall be true and correct:
(a)    the representations and warranties set forth in Article VI (excluding, however, those set forth in Section 6.10) shall be true and correct in all material respects except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, with the same effect as if then made; and
(b)    no Default and no Prepayment Event and no event which (with notice or lapse of time or both) would become a Prepayment Event shall have then occurred and be continuing.
SECTION 5.1.6    Loan Request. The Facility Agent shall have received a Loan Request duly executed by the Borrower together with:
(a)    where an Additional Advance is requested in respect of the Non-Yard Costs, the Delivery Non-Yard Costs Certificate;
(b)    certified as true (by the Builder) copies of the invoice and supporting documents received by the Builder from the Borrower pursuant to Appendix C of the Construction Contract in relation to the Paid Non-Yard Costs to be financed as at the time of issue and a declaration from the Borrower in substantially the form set forth in Exhibit D hereto that the requirements for a minimum 15% French content in respect of Non-Yard Costs have been fulfilled;
(c)    a copy of the final commercial invoice from the Builder showing the amount of the Contract Price (including the Non-Yard Costs and the Other Basic Contract
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Price Increases) and the portion thereof payable to the Builder on the Actual Delivery Date under the Construction Contract; and
(d)    copies of the wire transfers for all payments by the Borrower to the Builder under the Construction Contract in respect of the Basic Contract Price to the extent not already provided as part of the drawdown conditions for drawdowns made by the Original Borrower.
SECTION 5.1.7    Foreign Exchange Counterparty Confirmations. The Facility Agent shall have received the documentation and other information referred to in clause 5.6 of the Novation Agreement.
SECTION 5.1.8    Protocol of delivery. The Facility Agent shall have received a copy of the protocol of delivery and acceptance under the Construction Contract duly signed by the Builder and the Borrower or the Nominated Owner to be notified to the Facility Agent.
SECTION 5.1.9    Title to Purchased Vessel. The Facility Agent shall have received evidence that the Purchased Vessel is legally and beneficially owned by the Borrower or the Nominated Owner (as the case may be),, free of all recorded Liens, other than Liens permitted by Section 7.2.3 and, to the extent not yet discharged, the Mortgage (as defined in the Novation Agreement).
SECTION 5.1.10    Interest Stabilisation. The ECA Agent shall have received a duly executed fixed rate approval from Natixis DAI issued to the Lenders in respect of the CIRR applicable to the Loan and shall have been informed by the French Authorities of the conditions of the interest make-up mechanisms (stabilisation du taux d’intérêt) applicable to the Loan under the applicable Interest Stabilisation Agreement in respect of the Lenders, such conditions to specify, among other things, that the CIRR has been retained under the interest make-up mechanisms applicable to the Loan.
In relation to Section 5.1.10, if a Lender (an “Ineligible Lender”) becomes ineligible or otherwise ceases to be a party to an Interest Stabilisation Agreement, it shall promptly upon becoming aware thereof (and by no later than 15 Business Days before the anticipated Actual Delivery Date) notify the Borrower, the ECA Agent and the Facility Agent.
Following receipt of such a notice, the ECA Agent (through the Facility Agent) shall give to the Borrower at least 10 Business Days’ prior notice stating if the condition precedent in Section 5.1.10 will not be satisfied due to the Ineligible Lender but would be satisfied by the replacement of the Ineligible Lender as set out below, with such replacement to take effect for the purpose of this Section on the Actual Delivery Date.
On its receipt of such notice from the ECA Agent, the Borrower shall be entitled, at any time thereafter and without prejudice to any rights and remedies it may have against such Ineligible Lender pursuant to Section 3.3.3, to replace such Ineligible Lender with another bank or financial institution reasonably acceptable to the Facility Agent, BpiFAE and Natixis DAI with effect from the Actual Delivery Date, provided that (i) each such transfer shall be either a transfer of all of the rights and obligations of the Ineligible Lender under this Agreement or a transfer of a portion of such rights and obligations made concurrently with another such transfer or other such transfers that together cover all of the rights and obligations of the Ineligible Lender under this Agreement and (ii) no Lender shall be
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obligated to make effective any such transfer as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from one or more Assignee Lenders in an aggregate amount equal to the aggregate outstanding principal amount of the portion of the Novated Loan Balance which, immediately following the Novation Effective Time, would have been owing to such Lender pursuant to Section 2.3(a) had that Lender not been replaced prior to the Novation Effective Time. The ECA Agent and the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Ineligible Lender, and taking such other steps that may be reasonably required and which are within the control of the ECA Agent and the Facility Agent to assist with the satisfaction of the condition precedent in Section 5.1.10 prior to funding on the Actual Delivery Date.
Provided however the Borrower shall be entitled, without prejudice to its rights and remedies pursuant to Section 3.3.3, to elect that if at the Actual Delivery Date the condition precedent in Section 5.1.10 is not satisfied the Floating Rate should apply to the Loan, such election to be made by notice in writing to the Facility Agent not less than five (5) Business Days prior to the anticipated Actual Delivery Date in which event, subject to the approval of BpiFAE, the Loan shall bear interest at the Floating Rate and the condition set out in Section 5.1.10 shall be deemed waived by the Lenders.
The ECA Agent (through the Facility Agent) shall, promptly after the Borrower’s request, advise the Borrower whether it is aware (based solely on information obtained from Natixis DAI and other French Authorities and/or received from the Lenders at the time of any such request and without any liability on the ECA Agent for the accuracy of that information) that the condition precedent in Section 5.1.10 will not or may not be satisfied as required by Section 5.1.10.
SECTION 5.1.11    Escrow Account Security. The Facility Agent shall have received the Escrow Account Security duly executed by the Borrower together with a duly executed notice of charge and acknowledgement thereto executed by the Borrower and the Escrow Account Bank respectively.
ARTICLE VI

REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Facility Agent to enter into this Agreement and to make the Loan hereunder, the Borrower represents and warrants to the Facility Agent and each Lender as set forth in this Article VI as of the Actual Delivery Date and on the Guarantee Release Date (in each case except as otherwise stated).
SECTION 6.1.    Organization, etc. The Borrower is a corporation validly organized and existing and in good standing under the laws of its jurisdiction of incorporation; the Borrower is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the nature of its business requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect; and the Borrower has full power and authority, has taken all corporate action and holds all governmental and creditors’ licenses, permits, consents and other approvals necessary to enter into each Loan Document to which it is a party and to perform the Obligations.
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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 except as would not reasonably be expected to result in a Material Adverse Effect;
(c)    contravene any court decree or order binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect;
(d)    contravene any contractual restriction binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect; or
(e)    result in, or require the creation or imposition of, any Lien on any of the Borrower’s properties except as would not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.3.    Government Approval, Regulation, etc. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or other Person is required for the due execution, delivery or performance by the Borrower of this Agreement or any other Loan Document (except for authorizations or approvals not required to be obtained on or prior to the Actual Delivery Date or that have been obtained or actions not required to be taken on or prior to the Actual Delivery Date or that have been taken). The Borrower holds all governmental licenses, permits and other approvals required to conduct its business as conducted by it on the Actual Delivery Date, except to the extent the failure to hold any such licenses, permits or other approvals would not have a Material Adverse Effect.
SECTION 6.4.    Compliance with Environmental Laws. The Borrower is in compliance with all applicable Environmental Laws, except to the extent that the failure to so comply would not have a Material Adverse Effect.
SECTION 6.5.    Validity, etc. This Agreement constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles.
SECTION 6.6.    No Default, Event of Default or Prepayment Event. No Default, Event of Default or Prepayment Event has occurred and is continuing.
SECTION 6.7.    Litigation. There is no action, suit, litigation, investigation or proceeding pending or, to the knowledge of the Borrower, threatened against the Borrower, that (i) except as set forth in filings made by the Borrower with the SEC in the Borrower’s reasonable opinion might reasonably be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries (taken as a
    53


whole) (collectively, “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation of the transactions contemplated hereby.
SECTION 6.8.    The Purchased Vessel. Immediately following the delivery of the Purchased Vessel to the Borrower under the Construction Contract, the Purchased Vessel will be:
(a)    legally and beneficially owned by the Borrower or one of the Borrower’s wholly owned Subsidiaries,
(b)    registered in the name of the Borrower or one of the Borrower’s wholly owned Subsidiaries under the Bahamian or Maltese flag or such other flag as the parties may mutually agree,
(c)    classed as required by Section 7.1.4(b),
(d)    free of all recorded Liens, other than Liens permitted by Section 7.2.3,
(e)    insured against loss or damage in compliance with Section 7.1.5, and
(f)    exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries.
SECTION 6.9.    Obligations rank pari passu; Liens.
(a)    The Obligations rank at least pari passu in right of payment and in all other respects with all other unsecured unsubordinated Indebtedness of the Borrower other than Indebtedness preferred as a matter of law.
(b)    As at the date of this Agreement, the provisions of this Agreement which permit or restrict the granting of Liens are no less favorable than the provisions permitting or restricting the granting of Liens in any other agreement entered into by the Borrower with any other person providing financing or credit to the Borrower.
SECTION 6.10.    Withholding, etc. As of the Signing Date, no payment to be made by the Borrower under any Loan Document is subject to any withholding or like tax imposed by any Applicable Jurisdiction.
SECTION 6.11.    No Filing, etc. Required. No filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of any Applicable Jurisdiction to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Agreement or the other Loan Documents (except for filings, recordings, registrations or payments not required to be made on or prior to the Actual Delivery Date or that have been made).
SECTION 6.12.    No Immunity. The Borrower is subject to civil and commercial law with respect to the Obligations. Neither the Borrower nor any of its properties or revenues is entitled to any right of immunity in any Applicable Jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to the Obligations (to the extent
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such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted or exist).
SECTION 6.13.    Investment Company Act. The Borrower is not required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
SECTION 6.14.    Regulation U. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of the Loan will be used for a purpose which violates, or would be inconsistent with, F.R.S. Board Regulation U. Terms for which meanings are provided in F.R.S. Board Regulation U or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
SECTION 6.15.    Accuracy of Information. The financial and other information (other than financial projections or other forward looking information) furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Borrower, true and correct and contains no misstatement of a fact of a material nature. All financial projections, if any, that have been furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with this Agreement have been or will be prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the projections will be realized). All financial and other information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Borrower in good faith.
SECTION 6.16.    Compliance with Laws. The Borrower is in compliance with all applicable laws, rules, regulations and orders, except to the extent that the failure to so comply does not and could not reasonably be expected to have a Material Adverse Effect, and the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The Borrower and its Subsidiaries and, to the knowledge of the Borrower, their respective officers, employees, directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions, in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in Borrower being designated as a Sanctioned Person. None of (a) the Borrower, any Subsidiary or to the knowledge of the Borrower or such Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.

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ARTICLE VII

COVENANTS
SECTION 7.1.    Affirmative Covenants. The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date (or, where applicable, from such time as may be stated in any applicable provision below) until all Commitments have terminated and all Obligations have been paid in full, the Borrower will perform the obligations set forth in this Section 7.1.
SECTION 7.1.1    Financial Information, Reports, Notices, etc. The Borrower will furnish, or will cause to be furnished, to the Facility Agent (with sufficient copies for distribution to each Lender) the following financial statements, reports, notices and information:
(a)    as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, a copy of the Borrower’s report on Form 10-Q (or any successor form) as filed by the Borrower with the SEC for such Fiscal Quarter, containing unaudited consolidated financial statements of the Borrower for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
(b)    as soon as available and in any event within 120 days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s annual report on Form 10-K (or any successor form) as filed by the Borrower with the SEC for such Fiscal Year, containing audited consolidated financial statements of the Borrower for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLP or another firm of independent public accountants of similar standing;
(c)    together with each of the statements delivered pursuant to the foregoing clause (a) or (b), a certificate, executed by the chief financial officer, the treasurer or the corporate controller of the Borrower, showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year compliance with the covenants set forth in Section 7.2.4 (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
(d)    as soon as possible after the occurrence of a Default or Prepayment Event, a statement of the chief financial officer of the Borrower setting forth details of such Default or Prepayment Event (as the case may be) and the action which the Borrower has taken and proposes to take with respect thereto;
(e)    as soon as the Borrower becomes aware thereof, notice of any Material Litigation except to the extent that such Material Litigation is disclosed by the Borrower in filings with the SEC;
(f)    as soon as the Borrower becomes aware thereof, notice of any event which, in its reasonable opinion, would be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole;
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(g)    promptly after the sending or filing thereof, copies of all reports which the Borrower sends to all holders of each security issued by the Borrower, and all registration statements which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange;
(h)    such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Facility Agent may from time to time reasonably request (including an update to any information and projections previously provided to the Lenders where these have been prepared and are available);
(i)    during the Financial Covenant Waiver Period, as soon as available and in any event within respectively five (5) Business Days, ten (10) and forty (40) days (or such other period as BpiFAE may require from time to time) after the end of each monthly, bi-monthly and quarterly period (save that the period in respect of the final quarter of each Fiscal Year shall be sixty (60) days) from the Fourth Supplement Effective Date, the information required by the Debt Deferral Extension Regular Monitoring Requirements (as such information requirements may be amended on the basis set out in the Debt Deferral Extension Regular Monitoring Requirements) (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
(j)    during the Financial Covenant Waiver Period, upon the request of the Facility Agent (acting on the instructions of BpiFAE), the Borrower and the Lenders shall provide information in form and substance satisfactory to BpiFAE regarding arrangements in respect of Indebtedness for borrowed money of the Group then existing or any such Indebtedness to be incurred by or made available to (as the case may be) the Group pursuant to binding commitments (such information to be provided to BpiFAE in accordance with terms of the Facility Agent’s request);
(k)    during the period from the Novation Effective Time until the Covenant Modification Date, within five Business Days after the end of each month falling during such period, 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 immediately preceding month, compliance with the covenant set forth in Section 7.2.4(C); provided that if, during such period, the Borrower is not in compliance with the covenant set forth in Section 7.2.4(C) as of the last day of such month, the Borrower shall show compliance with such covenant as of the date such certificate is delivered;
(l)    within 15 Business Days of the end of each month throughout the Early Warning Monitoring Period, 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 month (i) the ratio of Adjusted Cash Balance as of the last day of the most recently completed month to the Monthly Outflow for the month most recently ended (and showing whether the Adjusted Cash Balance covers the Monthly Outflow for at least the subsequent five-month period), (ii) the Borrower’s Adjusted EBITDA After Principal and Interest for
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the two consecutive Last Reported Fiscal Quarters and (iii) in the case of the next certificate to be submitted immediately following the Borrower’s publishing of results for each Last Reported Fiscal Quarter, a comparison of Adjusted EBITDA After Principal and Interest with the figure from the corresponding Fiscal Quarter in the 2019 Fiscal Year (in each case in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
(m)    on one occasion during each calendar year from the start of the Financial Covenant Waiver Period, the environmental plan of the Borrower (and including the Group’s carbon emissions for the past two years (calculated according to methodologies defined by the IMO or any other public methodology specified by the Borrower) as required to be published pursuant to each letter of the Borrower issued pursuant to the Fourth Novation Agreement Supplement;
(n)    if the Borrower intends to make a Restricted Voluntary Prepayment, not less than ten Business Days prior to the anticipated making of a Restricted Voluntary Prepayment, the Borrower shall provide written notice to the Facility Agent of that Restricted Voluntary Prepayment (which notice shall set out in reasonable detail the terms of that Restricted Voluntary Prepayment); and
(o)    during the Financial Covenant Waiver Period, as soon as the Borrower becomes aware thereof, notice (with a copy to the ECA Agent and BpiFAE) of any matter that has, or may, result in a breach of Section 7.1.10,
provided that information required to be furnished to the Facility Agent under subsections (a), (b), (g) and (m) of this Section 7.1.1 shall be deemed furnished to the Facility Agent when available free of charge on the Borrower’s website at http://www.rclinvestor.com or the SEC’s website at http://www.sec.gov.
SECTION 7.1.2    Approvals and Other Consents. The Borrower will obtain (or cause to be obtained) all such governmental licenses, authorizations, consents, permits and approvals as may be required for (a) each Obligor to perform its obligations under the Loan Documents to which it is a party and (b) the operation of the Purchased Vessel in compliance with all applicable laws, except, in each case, to the extent that failure to obtain (or cause to be obtained) such governmental licenses, authorizations, consents, permits and approvals would not be expected to have a Material Adverse Effect.
SECTION 7.1.3    Compliance with Laws, etc. The Borrower will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, except (other than as described in clauses (a) and (f) below) to the extent that the failure to so comply would not have a Material Adverse Effect, which compliance shall in any case include (but not be limited to):
(a)    in the case of the Borrower, the maintenance and preservation of its corporate existence (subject to the provisions of Section 7.2.6);
(b)    in the case of the Borrower, maintenance of its qualification as a foreign corporation in the State of Florida;
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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, except to the extent being diligently contested in good faith by appropriate proceedings;
(d)    compliance with all applicable Environmental Laws;
(e)    compliance with all anti-money laundering and anti-corrupt practices laws applicable to the Borrower, including by not making or causing to be made any offer, gift or payment, consideration or benefit of any kind to anyone, either directly or indirectly, as an inducement or reward for the performance of any of the transactions contemplated by this agreement to the extent the same would be in contravention of such applicable laws; and
(f)    the Borrower will maintain in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
SECTION 7.1.4    The Purchased Vessel. The Borrower will:
(a)    cause the Purchased Vessel to be exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries, provided that the Borrower or such Subsidiary may charter out the Purchased Vessel (i) to entities other than the Borrower and the Borrower’s wholly owned Subsidiaries and (ii) on a time charter with a stated duration not in excess of one year;
(b)    cause the Purchased Vessel to be kept in such condition as will entitle her to classification by a classification society of recognized standing;
(c)    provide the following to the Facility Agent with respect to the Purchased Vessel:
(i)    evidence as to the ownership of the Purchased Vessel by the Borrower or one of the Borrower’s wholly owned Subsidiaries; and
(ii)    evidence of no recorded Liens on the Purchased Vessel, other than Liens permitted pursuant to Section 7.2.3;
(d)    within seven days after the Actual Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
(i)    evidence of the class of the Purchased Vessel; and
(ii)    evidence as to all required insurance being in effect with respect to the Purchased Vessel; and
(e)    on or before the later of (i) 31 July and (ii) 30 days after its own receipt of a Statement of Compliance in each calendar year, supply, or procure the supply, to the Facility Agent (for distribution to BpiFAE and the Lenders) (in each case at the cost of the Borrower) of all information necessary in order for any Lender to comply with its obligations under the Poseidon Principles in respect of the preceding year, including, without limitation, all ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI (as collated and reported to the Purchased Vessel’s flag state using
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the verification report submitted to that flag state) and any Statement of Compliance, in each case relating to the Purchased Vessel for the preceding calendar year, provided always that such information shall be confidential information for the purposes of Section 11.15 and, accordingly, no Lender shall publicly disclose such information with the identity of the Purchased Vessel or the Borrower (or, if applicable, the Borrower’s wholly owned Subsidiary that then owns the Purchased Vessel) without the prior written consent of the Borrower (it being expressly agreed however that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the relevant Lender’s portfolio climate alignment).
SECTION 7.1.5    Insurance. The Borrower will maintain or cause to be maintained with responsible insurance companies insurance with respect to the Purchased Vessel against such casualties, third-party liabilities and contingencies and in such amounts, in each case, as is customary for other businesses of similar size in the passenger cruise line industry (provided that in no event will the Borrower or any Subsidiary be required to obtain any business interruption, loss of hire or delay in delivery insurance) and will, upon request of the Facility Agent, furnish to the Facility Agent (with sufficient copies for distribution to each Lender) at reasonable intervals a certificate of a senior officer of the Borrower setting forth the nature and extent of all insurance maintained by the Borrower and certifying as to compliance with this Section.
SECTION 7.1.6    Books and Records. The Borrower will keep books and records that accurately reflect all of its business affairs and transactions and permit the Facility Agent and each Lender or any of their respective representatives, at reasonable times and intervals and upon reasonable prior notice, to visit each of its offices, to discuss its financial matters with its officers and to examine any of its books or other corporate records.
SECTION 7.1.7    BpiFAE Insurance Policy/French Authority Requirements. The Borrower shall, on the reasonable request of the ECA Agent or the Facility Agent, provide such other information as required under the BpiFAE Insurance Policy and/or the Interest Stabilisation Agreement as necessary to enable the ECA Agent or the Facility Agent to obtain the full support of the relevant French Authority pursuant to the BpiFAE Insurance Policy and/or the Interest Stabilisation Agreement (as the case may be). The Borrower must pay to the ECA Agent or the Facility Agent the amount of all reasonable costs and expenses reasonably incurred by the ECA Agent or the Facility Agent in connection with complying with a request by any French Authority for any additional information necessary or desirable in connection with the BpiFAE Insurance Policy or the Interest Stabilisation Agreement (as the case may be); provided that the Borrower is consulted before the ECA Agent or Natixis incurs any such cost or expense.
SECTION 7.1.8    Further Assurances in respect of the Framework
The Borrower will from time to time throughout the Financial Covenant Waiver Period, and at the request of the Facility Agent, promptly enter into good faith negotiations in respect of (a) amending this Agreement to remove the carve-out of Section 7.2.4 set out in Section 9.1.4 and/or (b) amending the financial covenants set forth in this Agreement, resetting the testing of such financial covenants and/or supplementing those financial covenants with additional financial covenants. A failure to reach an agreement under this paragraph following such good faith negotiations shall not constitute an Event of Default or a Prepayment Event.
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SECTION 7.1.9    Equal Treatment with Pari Passu Creditors. The Borrower undertakes with the Facility Agent that it shall ensure (and shall procure that each other Group Member shall ensure) that the Lenders are treated equally in all respects with all other Pari Passu Creditors, and accordingly:
(a)    the Borrower shall, to the extent not already entered into as at the Fourth Supplement Effective Date, enter into similar covenant amendment and replacement and mandatory prepayment arrangements to those contemplated by the Fourth Novation Agreement Supplement in respect of each ECA Financing (and for this purpose excluding any ECA Financings where the lenders under that ECA Financing do not provide their consent to such arrangements in circumstances where the arrangements contemplated in respect of that ECA Financing are on substantially the same basis as set out in this Agreement (as amended by the Fourth Novation Agreement Supplement) but including any financing which will, upon novation of the relevant facility agreement to the Borrower, become an ECA Financing) as soon as reasonably practicable after the Fourth Supplement Effective Date (with such amendments being on terms which shall not prejudice the rights of BpiFAE under this Agreement);
(b)    the Borrower shall promptly upon written request, supply the Facility Agent and the ECA Agent with information (in a form and substance satisfactory to the Facility Agent and ECA Agent) regarding the status of the amendments to be entered into in accordance with paragraph (a) above;
(c)    to enable the Borrower to comply with the requirements under paragraph (d) below, prior to any Group Member entering into any Restricted Credit Enhancement with a Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.9(a)(ii)), the Borrower shall promptly notify the Facility Agent (and such notification shall include details of the new Lien or Group Member Guarantee and shall otherwise be in form and substance reasonably satisfactory to the Facility Agent); and
(d)     at the same time as any relevant Restricted Credit Enhancement is provided to the relevant Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.9(a)(ii)), the Borrower, any relevant Group Member and the Lenders shall enter into such documentation as may be necessary in the reasonable opinion of the Facility Agent to ensure that the Lenders benefit from that Restricted Credit Enhancement on the same terms as the relevant Pari Passu Creditor(s) and, where that Restricted Credit Enhancement is a Lien or a Group Member Guarantee, to share in that Lien or Group Member Guarantee on a pari passu basis (and the Lenders agree to enter into such intercreditor documentation to reflect such pari passu ranking (in a form and substance satisfactory to the Lenders (acting reasonably)) as may be required in connection with such arrangements).
SECTION 7.1.10 Performance of shipbuilding contract obligations. During the Financial Covenant Waiver Period, the Borrower shall (and shall procure that each of its Subsidiaries shall) comply with its contractual commitments under and in respect of (i) each shipbuilding contract in existence as at the Fourth Supplement Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period)
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entered into with the Builder and (ii) any option agreements or similar binding contractual commitments (whether in respect of a firm order of a vessel or otherwise) in existence at the Fourth Supplement Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into by the Borrower (or any of its Subsidiaries) and the Builder in connection with the potential entry into of a shipbuilding contract at a future point in time (it being agreed that such obligation shall not require the Borrower or the relevant Subsidiary (as applicable) to exercise any option or other contractual right thereunder), save that this Section 7.1.10 shall be subject to any amendment to any such shipbuilding contract, option agreement, contract or other related document if such amendment has, in consultation with the ECA Agent (acting on the instructions of BpiFAE), been agreed between the Borrower or, as the case may be, relevant Subsidiary and the Builder.
SECTION 7.2.    Negative Covenants. The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date until all Commitments have terminated and all Obligations have been paid and performed in full, the Borrower will perform the obligations set forth in this Section 7.2.
SECTION 7.2.1    Business Activities. The Borrower will not, and will not permit any of its Subsidiaries to, engage in any principal business activity other than those engaged in by the Borrower and its Subsidiaries on the date hereof and other business activities reasonably related, ancillary or complimentary thereto or that are reasonable extensions thereof.
SECTION 7.2.2    Indebtedness. Until the occurrence of the Guarantee Release Date (whereupon Section 7.2.2 of Exhibit N shall apply in accordance with Section 7.3) the Borrower will not permit any of the Existing Principal Subsidiaries to create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, other than, without duplication, the following:
(a)    Indebtedness secured by Liens of the type described in Section 7.2.3;
(b)    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower;
(c)    Indebtedness incurred to finance, refinance or refund the cost (including the cost of construction) of assets acquired after the Effective Date;
(d)    Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted to be secured under Section 7.2.3(b), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
(e)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; and
(f)    Indebtedness of Silversea Cruise Holding Ltd. and its Subsidiaries (“Silversea”) identified in Section 1 of Exhibit F hereto.
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SECTION 7.2.3    Liens. Until the occurrence of the Guarantee Release Date (whereupon Section 7.2.2 of Exhibit N shall apply in accordance with Section 7.3) the Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired, except:
(a)    Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Borrower after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Vessel, owns a Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
(b)    in addition to other Liens permitted under this Section 7.2.3, Liens securing Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted under Section 7.2.2(d), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10% of the total assets of the Borrower and its Subsidiaries (the “Lien Basket Amount”) taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; provided, however that, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody’s and S&P, the Lien Basket Amount shall be the greater of (x) 5.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter and (y) $735,000,000;
(c)    Liens on assets acquired after the Effective Date by the Borrower or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Borrower or any of its Subsidiaries in anticipation thereof;
(d)    Liens on any asset of any corporation that becomes a Subsidiary of the Borrower (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Borrower is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation becomes a Subsidiary of the Borrower and were not created by the Borrower or any of its Subsidiaries in anticipation thereof;
(e)    Liens securing Government-related Obligations;
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(f)    Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;
(g)    Liens of carriers, warehousemen, mechanics, material-men and landlords incurred in the ordinary course of business for sums not overdue by more than 60 days or being diligently contested in good faith by appropriate proceedings;
(h)    Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
(i)    Liens for current crew’s wages and salvage;
(j)    Liens arising by operation of law as the result of the furnishing of necessaries for any Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings;
(k)    Liens on Vessels that:
(i)    secure obligations covered (or reasonably expected to be covered) by insurance;
(ii)    were incurred in the course of or incidental to trading such Vessel in connection with repairs or other work to such Vessel; or
(iii)    were incurred in connection with work to such Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;
provided that, in each case described in this clause (k), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;
(l)    normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers’ liens, rights of set-off or similar rights in favor of banks or other depository institutions;
(m)    Liens in respect of rights of set-off, recoupment and holdback in favor of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business;
(n)    Liens on cash or Cash Equivalents or marketable securities securing obligations in respect of Hedging Instruments not incurred for speculative purposes or securing letters of credit that support such obligations;
(o)    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
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(p)    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
(q)    licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
(r)    Liens on any property of Silversea identified in Section 2 of Exhibit F hereto,
provided, however that from the Fourth Supplement Effective Date until the Guarantee Release Date, no Group Member shall be entitled to grant any Lien of the type referred to in paragraphs (a) to (d) above over any ECA Financed Vessel.
SECTION 7.2.4    Financial Condition. The Borrower will not permit:
(a)    Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1.
(b)    Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter.
In addition, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody’s and S&P, the Borrower will not permit Stockholders’ Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single accounting period, but in any event excluding any Fiscal Quarters for which the Borrower and its Subsidiaries have a consolidated net loss).
SECTION 7.2.4(A). Most favored lender with respect to Financial Covenants. During the Financial Covenant Waiver Period, if any Group Member agrees, in respect of any of its Indebtedness for borrowed money, to any new, modified or substitute financial covenants of the type, or similar to, the financial covenants set out in Section 7.2.4 above then (i) the Borrower shall notify the Facility Agent in writing within 5 Business Days of such new, modified or substitute financial covenants being agreed with the relevant creditor(s) and (ii) if required by the Lenders, the Borrower and the Lenders shall, as soon as practicable thereafter, enter into an amendment to this Agreement to incorporate the new, modified or substitute financial covenants.
SECTION 7.2.4(B). Notification of change to financial covenants.    (i)     If at any time during the Financial Covenant Waiver Period, other than as notified in writing by the Borrower to the Facility Agent prior to the date of the Fourth Novation Agreement Supplement, the last day of a financial covenant waiver period under any of the agreements in respect of any of the Borrower’s other Indebtedness shall be amended such that it falls prior to September 30, 2022, the Borrower shall notify the Facility Agent and that revised date, save as provided below, shall be the last date of the Financial Covenant Waiver Period for the purposes of this Agreement.
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(ii)    If, other than as notified in writing by the Borrower to the Facility Agent prior to the date of the Fourth Novation Agreement Supplement, following receipt of the notice referred to in sub-paragraph (i) above, the relevant date referred to above is then extended, the Borrower shall be entitled to notify the Facility Agent of the same and, upon receipt of that notice, such revised date or, if earlier, September 30, 2022, shall then become the final date of the Financial Covenant Waiver Period for the purposes of this Agreement.
SECTION 7.2.4(C). Minimum liquidity.     The Borrower will not allow the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP to be less than the Adjustable Amount as of (i) the last day of any calendar month from the Fourth Supplement Effective Date until the Covenant Modification Date, or (ii) if the Borrower is not in compliance with the requirements of this Section 7.2.4(C) as of the last day of any calendar month during the Financial Covenant Waiver Period (or, if earlier, prior to the Covenant Modification Date), the date the certificate required by Section 7.1.1(k) with respect to such month is delivered to the Facility Agent (it being understood that the Borrower shall not be required to comply with this Section 7.2.4(C) at any time on or after the Covenant Modification Date).
SECTION 7.2.5    Additional Undertakings. From the effectiveness of the Third Novation Agreement Supplement, and notwithstanding anything to the contrary set out in this Agreement or any other Loan Document:
a)    First Priority Guarantee Matters. Until the occurrence of a First Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the First Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the First Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(iii)    the First Priority Guarantor will not incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with any Other Guarantees;
(iv)    neither Celebrity Cruises Holdings Inc. nor Celebrity Cruises Inc will incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with the Secured Note Indebtedness or any Permitted Refinancing thereof; and
(v)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any First Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any First Priority Assets, other than:
(A)    to any other entity that is a First Priority Guarantor;

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(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of First Priority Assets made after the effectiveness of the Third Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(1)    $250,000,000 plus
(2)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) First Priority Assets or other assets owned by another First Priority Guarantor immediately prior to acquisition) acquired by any First Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement; or
(C)    if the net proceeds therefrom are applied in accordance with Section 4.09(b)(i) or 4.09(b)(iii) of the Secured Note Indenture, to the extent applicable at such time; provided, however, that if, within 450 days of such Disposition, any net proceeds of such Disposition have not been utilized in accordance with such provisions and are retained by the Borrower or any Subsidiary after such application (such retained net proceeds, “Excess Proceeds”), then:
(1)    if not already held by a First Priority Guarantor, such Excess Proceeds shall be promptly transferred to a First Priority Guarantor to be (x) retained in an account and on the balance sheet of that First Priority Guarantor and (y) used solely (i) for capital expenditures for the benefit of the remaining First Priority Assets or for the purposes of any asset purchase by that First Priority Guarantor or (ii) to make an offer to each ECA Guarantor in accordance with the following sub-clause (2); or
(2)    where the Borrower has elected to utilize the Excess Proceeds in the manner referred to in (ii) above, the Borrower shall make a written offer contemporaneously to each ECA Guarantor to apply such Excess Proceeds as a pro rata prepayment of the Loan and the Indebtedness under each other ECA
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Financing that is pari passu in right of payment to the Obligations. If any ECA Guarantor provides written notice to the Borrower within 90 days of such offer accepting such offer, the Borrower shall prepay the relevant Indebtedness notified to it within 10 Business Days (or such longer period as may be agreed with the lenders under each relevant ECA Financing being prepaid) of the date of receipt of such notice. If any ECA Guarantor fails to accept such offer within the said 90 days referred to above, then the pro rata portion of such Excess Proceeds that would have been applied to prepay the ECA Financings with respect to such ECA Guarantor if such offer was accepted shall be retained and applied in accordance with the foregoing sub-clause (1)(i).
b)    Second Priority Guarantee Matters. Until the occurrence of a Second Priority Release Event:
(i)    the Borrower will not, and will not permit any of its Subsidiaries to, form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Second Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    no Second Priority Guarantor will form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any Second Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Second Priority Assets, other than:
(A)    to any other entity that is a Second Priority Guarantor; or
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Second Priority Assets made after the effectiveness of the Third Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A)) is less than the sum of:
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(1)    $250,000,000 plus
(2)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Second Priority Assets or other assets owned by another Second Priority Guarantor immediately prior to acquisition) acquired by any Second Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement.
c)    Third Priority Guarantee Matters. Until the occurrence of a Third Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the Third Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the Third Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any Third Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Third Priority Assets, other than:
(A)    to any other entity that is a Third Priority Guarantor;
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Third Priority Assets made after the effectiveness of the Third Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(1)    $250,000,000 plus
(2)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Third Priority Assets or other assets owned by another Third Priority Guarantor immediately prior to acquisition) acquired by any Third Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement; or
(C)    if the net proceeds therefrom are applied in accordance with those provisions of the Unsecured Note Indenture and/or the definitive documentation governing the DDTL Indebtedness to the extent applicable at the time which allow the Borrower to make an offer to prepay
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and/or repay the debt evidenced by the Unsecured Note Indenture and/or DDTL Indebtedness, as applicable; provided that, if any such net proceeds are retained by the Borrower or any Subsidiary after such application, the Borrower shall promptly repay or redeem all or any portion of any Indebtedness that is pari passu or senior in right of payment to the Obligations and for which a Third Priority Guarantor is a guarantor, in each case, subject to the terms of the documentation governing such Indebtedness (including the DDTL Indebtedness, the Unsecured Note Indebtedness, any Bank Indebtedness, any Credit Card Obligations, the Loan and any other Indebtedness under an ECA Financing); provided, further, that any repayment of Indebtedness under any revolving credit agreement pursuant to this paragraph shall be accompanied by a corresponding permanent reduction in the related revolving credit commitments.
d)    New Guarantor Matters. In the event the Borrower or any of its Subsidiaries acquires an ECA Financed Vessel:
(i)    the Borrower will cause the applicable New Guarantor to provide, on or before the later of (1) 15 Business Days of the purchase of the relevant ECA Financed Vessel and (2) the Effective Time (A) an Additional Guarantee, together with each equivalent Other Guarantee required to be provided under the terms of the other ECA Financings (as amended from time to time) and (B) all documents and information required by the Lenders in order to satisfy any applicable “know your customer” checks and any other reasonable condition precedent requirements of the Lenders (excluding, for the avoidance of doubt, legal opinions) ; provided that, in each case, if such New Guarantor is party to a Senior Guarantee at such time, the Facility Agent shall have contemporaneously entered into a New Guarantor Subordination Agreement; and
(ii)    until the occurrence of a Second Priority Release Event and a Third Priority Release Event:
(A)    the Borrower will not permit the applicable New Guarantor to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness) other than the applicable Additional Guarantee, any Other Guarantee and any Senior Guarantee;
(B)    the Borrower will not permit the Principal Subsidiary that acquires the relevant ECA Financed Vessel to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness);
(C)    notwithstanding any other provision of this Agreement, the Borrower will not, and shall procure that no other Subsidiary shall Dispose (whether to a Group Member or
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otherwise) of the relevant ECA Financed Vessel (or any equity interests in a Subsidiary that owns, directly or indirectly, such ECA Financed Vessel); provided that (1) such ECA Financed Vessel may be exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries and (2) the Borrower or such Subsidiary may charter out such ECA Financed Vessel (x) to entities other than the Borrower and the Borrower’s wholly owned Subsidiaries and (y) on a time charter with a stated duration not in excess of one year; and
(D)    notwithstanding the provisions of Sections 7.2.2 and 7.2.3, the Borrower will not, and will not permit any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon the relevant ECA Financed Vessel, other than Liens permitted under Section 7.2.3 that do not secure Indebtedness for borrowed money.
e)    Further Assurances. At the Borrower’s reasonable request, the Facility Agent shall execute (i) any Additional Subordination Agreement or any Subordination Agreement, in substantially the form attached hereto as Exhibit J or Exhibit K with such changes, or otherwise in form and substance, reasonably satisfactory to the Facility Agent (acting upon the instructions of the Required Lenders and BpiFAE), to ensure the required priority of the Second Priority Guarantee and the Third Priority Guarantee and (ii) any New Guarantor Subordination Agreement contemporaneously with the execution of any Senior Guarantee by a New Guarantor if such New Guarantor has granted an Additional Guarantee at such time.
f)    Amount of Indebtedness. The Borrower shall ensure that:
(i)    the maximum aggregate principal amount of Bank Indebtedness (or any Permitted Refinancing thereof) guaranteed by the Second Priority Guarantors shall not exceed, in the aggregate, $5,300,000,000 (or its equivalent in any other currency) until the occurrence of a First Priority Release Event, a Second Priority Release Event, and a Third Priority Release Event;
(ii)    the maximum aggregate principal amount of Unsecured Note Indebtedness and DDTL Indebtedness (or any Permitted Refinancing of either of them), in each case, guaranteed by the Third Priority Guarantor shall not exceed, in the aggregate, $1,700,000,000 (or its equivalent in any other currency) until the occurrence of a Third Priority Release Event;
(iii)    until the occurrence of a Second Priority Release Event, none of the Second Priority Guarantors will grant any guarantee that is pari passu with or senior to its obligations under the Second Priority Guarantee, except in connection with (A) any Bank Indebtedness or any Permitted Refinancing thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the
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priority of that guarantee) than that currently provided by that Second Priority Guarantor in connection with the relevant Indebtedness; and
(iv)    until the occurrence of a Third Priority Release Event, the Third Priority Guarantor will not grant any guarantee that is pari passu with or senior to its obligations under the Third Priority Guarantee, except in connection with (A) any Bank Indebtedness, Unsecured Note Indebtedness, DDTL Indebtedness or any Permitted Refinancing of any thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that currently provided by the Third Priority Guarantor in connection with the relevant Indebtedness.
g)    Release of Guarantees. The Borrower agrees to give the Facility Agent written notice of the occurrence of any First Priority Release Event, Second Priority Release Event or Third Priority Release Event. The Facility Agent agrees, subject to the proviso (2) below, that:
(i)    the First Priority Guarantee shall be automatically released upon the occurrence of a First Priority Release Event;
(ii)    the Second Priority Guarantee shall be automatically released upon the occurrence of a Second Priority Release Event;
(iii)    the Third Priority Guarantee shall be automatically released upon the occurrence of a Third Priority Release Event; and
(iv)    each Additional Guarantee shall be automatically released upon the occurrence of both a Second Priority Release Event and a Third Priority Release Event,
provided (1) in each case, and subject to proviso (2) below, that upon the Borrower’s request, the Facility Agent shall promptly confirm in writing the release of the applicable Guarantee following the occurrence of the relevant release event and (2) where the Borrower is of the opinion that it would, if the Guarantee Release Date was to occur, be in breach of the provisions of Section 7.2.2 as set out in Exhibit N (and which would otherwise come into effect on that Guarantee Release Date) on the Guarantee Release Date, the Borrower shall be entitled, by serving written notice on the Facility Agent, to request that the Guarantee Release Date be postponed until such time as the Borrower is satisfied that it will be able to comply with the provisions of the said Section 7.2.2. Where the Borrower issues a notice pursuant to this proviso (2) it agrees that it shall use all reasonable endeavors and take all appropriate action as may be practicable at such time to enable it to comply with the said Section 7.2.2 as soon as practicable following the date that the Guarantee Release Date would have occurred but for this proviso (2) so that the Guarantee Release Date can then occur and, as soon as it is satisfied that it will be able to comply with the said Section 7.2.2 it will promptly serve a further written notice on the  Facility Agent. Upon receipt of this further notice, the provisions of this paragraph (g) shall once again apply and the Facility Agent shall then take the action required of it to enable the Guarantee Release Date to occur.

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SECTION 7.2.6    Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation, except:
(a)    any such Subsidiary may (i) liquidate or dissolve voluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 7.2.7; and
(b)    so long as no Event of Default has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i)    after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii)    in the case of a merger involving the Borrower where the Borrower is not the surviving corporation, (and without prejudice to the provisions of Sections 3.2(b) and (c) and 9.1.10, which shall not restrict the proposed merger but which can still apply to the extent that the proposed merger would give rise to any of the events or circumstances contemplated by such Sections):
(A)    the surviving corporation shall have assumed in writing, delivered to the Facility Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents; and
(B)    the surviving corporation shall, promptly upon the request of the Facility Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Facility Agent or any Lender in order for the Facility Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations.
SECTION 7.2.7    Asset Dispositions, etc. Subject to Section 7.2.5, the Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or substantially all of the assets of (a) the Borrower or (b) the Subsidiaries of the Borrower, taken as a whole, except sales of assets between or among the Borrower and Subsidiaries of the Borrower.
SECTION 7.2.8    Borrower’s Procurement Undertaking. Where any of the covenants set out in this Agreement require performance by any Subsidiary of the Borrower, the Borrower shall procure the performance of that obligation by such Subsidiary.
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SECTION 7.2.9    Framework Lien and Guarantee Restriction. From the Fourth Supplement Effective Date until the Guarantee Release Date, and without prejudice to Section 7.2.3, the Borrower shall not (and shall procure that each other Group Member shall not, save in respect of a Restricted Credit Enhancement of the type referred to in Section 7.1.9(d) (and in respect of which the Lenders therefore receive the benefit)):
a)    grant any Restricted Credit Enhancement in respect of any Indebtedness for borrowed money, provided that:
(i)    subject to the limitations set out in paragraph (b) below, this paragraph (a) shall not prohibit any Group Member from providing any Lien or Group Member Guarantee in connection with Indebtedness incurred after the Fourth Supplement Effective Date (provided that such Lien and/or Group Member Guarantee is issued at the same time, and in connection with, the initial incurrence of that Indebtedness (and is therefore not by way of additional credit support));
(ii)    in connection with a Permitted Refinancing of any Indebtedness, the relevant Group Member shall be entitled to provide the creditors under that Permitted Refinancing with Liens and/or Group Member Guarantees (as applicable) which:
(A)    in the case where the existing Indebtedness being refinanced was previously supported by Liens, the Liens and/or the Group Member Guarantees securing or supporting the Permitted Refinancing (as applicable) are over some or all of the same assets and
(1)    with respect to any Liens, are with the same or lower priority as the Liens in respect of such assets that secured the Indebtedness being refinanced; and    
(2)    with respect to any Group Member Guarantees, are Group Member Guarantees provided by a Group Member that owns (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that were previously secured pursuant to the Liens referred to in the first sentence of this paragraph (A); and
(B)    in the case where the existing Indebtedness being refinanced was previously supported by any Group Member Guarantee, the Group Member Guarantee(s) supporting such Permitted Refinancing are:

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(1)    guarantees of obligations in an amount no greater than the guarantees granted in connection with the original Indebtedness being refinanced;
(2)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing is the same entity providing the Group Member Guarantees that are being replaced, provided by entities owning (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that it owned when the previous Group Member Guarantee was provided;
(3)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing differs from the entity providing the Group Member Guarantees being replaced, provided by entities that directly or indirectly own Vessels with an aggregate book value no greater than the Vessels that were owned (directly or indirectly) by the previous provider of the relevant Group Member Guarantee(s) that supported the existing Indebtedness; and
(4)    the same or lower priority as the original Group Member Guarantee(s) and are issued by either the same entities or from shareholders of those entities,
provided that this paragraph (a) shall not prohibit any Group Member from providing or maintaining any Lien in accordance with the provisions of Section 7.2.3(d) through to (q) inclusive, provided, however, that the proviso at the end of Section 7.2.3(d) shall apply with respect to Liens granted pursuant to that provision; and
b)    incur any new Indebtedness (including Indebtedness of the type referred to in paragraph (a)(i) above but excluding any Permitted Refinancing Indebtedness in connection with paragraph (a)(ii) above) which is secured by a Lien or is supported by a Group Member Guarantee and which, when taken with all other Indebtedness incurred by the Group since the Fourth Supplement Effective Date and which is also secured by a Lien or supported by a Group Member Guarantee, is greater than $1,300,000,000 (but deducting from this amount for this purpose, (i) the amount of any additional Indebtedness incurred by the Borrower in connection with the drawing of the DDTL Indebtedness (whether pursuant to the accordion option or otherwise) or (ii) any Indebtedness borrowed in lieu of the drawing of the DDTL Indebtedness in the foregoing clause) or its equivalent in any other currency, and provided that no Group Member shall, as contemplated by the proviso to
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Section 7.2.3, from the Fourth Supplement Effective Date until the Guarantee Release Date (whereupon the relevant provisions of Exhibit N shall apply) be permitted to grant any Lien over an ECA Financed Vessel as security for any Indebtedness permitted to be incurred under this Agreement after the Fourth Supplement Effective Date.
SECTION 7.3.    Covenant Replacement. With effect on and from the Guarantee Release Date, it is agreed that Sections 7.2.2 and 7.2.3 shall be deleted in their entirety and replaced with the covenants and other provisions set out in Exhibit N, which shall become part of this Agreement and effective and binding on all Parties.
SECTION 7.4.    Lender incorporated in the Federal Republic of Germany. The representations and warranties and covenants given in Sections 6.16 and 7.1.3(f) respectively shall only be given, and be applicable to, a Lender incorporated in the Federal Republic of Germany insofar as the giving of and compliance with such representations and warranties do not result in a violation of or conflict with section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section 4 paragraph 1 a no.3 foreign trade law (AWG) (Außenwirtschaftsgesetz)), any provision of Council Regulation (EC) 2271/1996 or any similar applicable anti-boycott law or regulation.
ARTICLE VIII

EVENTS OF DEFAULT
SECTION 8.1.    Listing of Events of Default. Each of the following events or occurrences described in this Section 8.1 shall constitute an “Event of Default”.
SECTION 8.1.1    Non-Payment of Obligations. The Borrower shall default in the payment when due of any amount payable by it under the Loan Documents in the manner required under the Loan Documents unless such failure is solely as a result of either (a) administrative or technical error or (b) a Disruption Event, and, in either case, payment is made within 3 Business Days of its due date.
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) or under any other Loan Document is or shall be incorrect in any material respect when made.
SECTION 8.1.3    Non-Performance of Certain Covenants and Obligations. The Borrower shall default in the due performance and observance of any other agreement contained herein (including, from the Guarantee Release Date, Exhibit N) or in any other Loan Document (other than the covenants set forth in Section 7.1.1(i), Section 7.1.1(l), Section 7.1.1(m), Section 7.1.1(n), Section 7.1.1(o), Section 7.1.4(e), Section 7.1.8, Section 7.1.10 and Section 7.2.4 (but excluding Sections 7.2.4(A) and 7.2.4(B) (which shall be regulated in accordance with Section 9.1.11(d)) and also excluding Section 7.2.4(C), a breach of which shall, subject to the cure periods set out in this Section 8.1.3, result in an Event of Default) and the obligations referred to in Section 8.1.1) and such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower is
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actively seeking to remedy the same during such period, such default shall continue unremedied for at least 35 days after such notice to the Borrower).
SECTION 8.1.4 Default on Other Indebtedness. (a) The Borrower or any of its Principal Subsidiaries shall fail to pay any Indebtedness that is outstanding in a principal amount of at least $100,000,000 (or the equivalent in other currencies) in the aggregate (but excluding Indebtedness hereunder or with respect to Hedging Instruments) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (b) the occurrence under any Hedging Instrument of an Early Termination Date (as defined in such Hedging Instrument) resulting from (A) any event of default under such Hedging Instrument as to which the Borrower is the Defaulting Party (as defined in such Hedging Instrument) or (B) any Termination Event (as so defined) as to which the Borrower is an Affected Party (as so defined) and, in either event, the termination value with respect to any such Hedging Instrument owed by the Borrower as a result thereof is greater than $100,000,000 and the Borrower fails to pay such termination value when due after applicable grace periods; or (c) any other event shall occur or condition shall exist under any agreement or instrument evidencing, securing or relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to cause or permit the holder or holders of such Indebtedness to cause such Indebtedness to become due and payable prior to its scheduled maturity; or (d) any such Indebtedness shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption or by voluntary agreement), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness is required to be made, in each case prior to the scheduled maturity thereof (other than as a result of any sale or other disposition of any property or assets under the terms of such Indebtedness); provided that any required prepayment or right to require prepayment triggered by terms that are certified by the Borrower to be unique to, but customary in, ship financings shall not constitute an Event of Default under this Section 8.1.4 so long as any required prepayment is made when due. For purposes of determining Indebtedness for any Hedging Instrument, the principal amount of the obligations under any such instrument at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or any Principal Subsidiary would be required to pay if such instrument were terminated at such time.
SECTION 8.1.5    Bankruptcy, Insolvency, etc. The Borrower, any of the Material Guarantors or any of the Principal Subsidiaries (or any of its other Subsidiaries to the extent that the relevant event described below would have a Material Adverse Effect) shall:
(a)    generally fail to pay, or admit in writing its inability to pay, its debts as they become due;
(b)    apply for, consent to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or other custodian for it or any of its property, or make a general assignment for the benefit of creditors;
(c)    in the absence of such application, consent or acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or other custodian for it or for a substantial part of its property, and such trustee, receiver, sequestrator
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or other custodian shall not be discharged within 60 days, provided that in the case of such an event in respect of the Borrower or any Material Guarantor, such Person hereby expressly authorizes the Facility Agent and each Lender to appear in any court conducting any relevant proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents;
(d)    permit or suffer to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of the Borrower, any Material Guarantor or any of such Subsidiaries, and, if any such case or proceeding is not commenced by the Borrower, such Material Guarantor or such Subsidiary, such case or proceeding shall be consented to or acquiesced in by the Borrower, such Material Guarantor or such Subsidiary or shall result in the entry of an order for relief or shall remain for 60 days undismissed, provided that the Borrower and each Material Guarantor hereby expressly authorizes the Facility Agent and each Lender to appear in any court conducting any such case or proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents; or
(e)    take any corporate action authorizing, or in furtherance of, any of the foregoing.
SECTION 8.2.    Action if Bankruptcy. If any Event of Default described in clauses (b) through (d) of Section 8.1.5 shall occur with respect to any Group Member, the Commitments (if not theretofore terminated) shall automatically terminate and the outstanding principal amount of the Loan and all other Obligations shall automatically be and become immediately due and payable, without notice or demand.
SECTION 8.3.    Action if Other Event of Default. If any Event of Default (other than any Event of Default described in clauses (ii) through (iv) of Section 8.1.5 with respect to a Group Member) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Facility Agent, upon the direction of the Required Lenders (after consultation with BpiFAE who shall have the right to instruct the Lenders to waive such Event of Default), shall by notice to the Borrower declare all of the outstanding principal amount of the Loan and other Obligations to be due and payable and/or the Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of the Loan and other Obligations shall be and become immediately due and payable, without further notice, demand or presentment, and/or, as the case may be, the Commitments shall terminate.

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ARTICLE IX

PREPAYMENT EVENTS
SECTION 9.1.    Listing of Prepayment Events. Each of the following events or occurrences described in this Section 9.1 shall constitute a “Prepayment Event”.
SECTION 9.1.1    Change of Control. There occurs any Change of Control.
SECTION 9.1.2    Unenforceability. Any Loan Document shall cease to be the legally valid, binding and enforceable obligation of the Borrower or, to the extent applicable, any Material Guarantor (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 B-1 or in any opinion delivered to the Facility Agent after the Signing Date in connection with this Agreement or (ii) that a court of competent jurisdiction has determined are not material) and such event shall continue unremedied for 15 days after notice thereof has been given to the Borrower by the Facility Agent.
SECTION 9.1.3    Approvals. Any material license, consent, authorization, registration or approval at any time necessary to enable the Borrower, any Material Guarantor or any Principal Subsidiary to conduct its business shall be revoked, withdrawn or otherwise cease to be in full force and effect, unless the same would not have a Material Adverse Effect.
SECTION 9.1.4    Non-Performance of Certain Covenants and Obligations. The Borrower shall default in the due performance and observance of any of the covenants set forth in Sections 4.12, 7.1.1(m), 7.1.4(e) or 7.2.4 (but excluding Section 7.2.4(C)), provided that any such default in respect of Section 7.2.4 (but again excluding Section 7.2.4(C)) and, in the case of Sections 7.1.1(m) and 7.1.4(e), such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower is actively seeking to remedy the same during such period, such default shall continue unremedied for at least 35 days after such notice to the Borrower), that occurs during the Financial Covenant Waiver Period (but without prejudice to the rights of the Lenders in respect of any further breach that may occur following the expiry of the Financial Covenant Waiver Period) shall not (as long as no Event of Default under Section 8.1.5 has occurred and is continuing, or no Prepayment Event under Section 9.1.11 or 9.1.12 has occurred, in each case during the Financial Covenant Waiver Period) constitute a Prepayment Event.
SECTION 9.1.5    Judgments. Any judgment or order for the payment of money in excess of $100,000,000 shall be rendered against the Borrower or any of the Principal Subsidiaries by a court of competent jurisdiction and the Borrower or such Principal Subsidiary shall have failed to satisfy such judgment and either:
(a)    enforcement proceedings in respect of any material assets of the Borrower or such Principal Subsidiary shall have been commenced by any creditor upon such judgment or order and shall not have been stayed or enjoined within five (5) Business Days after the commencement of such enforcement proceedings; or
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(b)    there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
SECTION 9.1.6    Condemnation, etc. The Purchased Vessel shall be condemned or otherwise taken under color of law or requisitioned and the same shall continue unremedied for at least 20 days, unless such condemnation or other taking would not have a Material Adverse Effect.
SECTION 9.1.7    Arrest. The Purchased Vessel shall be arrested and the same shall continue unremedied for at least 20 days, unless such arrest would not have a Material Adverse Effect.
SECTION 9.1.8    Sale/Disposal of the Purchased Vessel. The Purchased Vessel is sold to a company which is not the Borrower or any other Subsidiary of the Borrower (other than for the purpose of a lease back to the Borrower or any other Subsidiary of the Borrower).
SECTION 9.1.9    BpiFAE Insurance Policy. The BpiFAE Insurance Policy is cancelled for any reason or ceases to be in full force and effect.
SECTION 9.1.10    Illegality. No later than the close of business on the last day of the Option Period related to the giving of any Illegality Notice by an affected Lender pursuant to Section 3.2(b), either: (x) the Borrower has not elected to take an action specified in clause (1) or (2) of Section 3.2(c) or (y) if any such election shall have been made, the Borrower has failed to take the action required in respect of such election. In such circumstances the Facility Agent (at the direction of the affected Lender) shall by notice to the Borrower require the Borrower to prepay in full all principal and interest and all other Obligations owing to such Lender either (i) forthwith or, as the case may be, (ii) on a future specified date not being earlier than the latest date permitted by the relevant law.
SECTION 9.1.11    Framework Prohibited EventsSECTION 9.1.12    
(a)    The Borrower declares, pays or makes or agrees to pay or make, directly or indirectly, any Restricted Payment, except for (i) dividends or other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests or options to purchase Equity Interests, (ii) Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans (including with respect to performance shares issued in the ordinary course of business) for present or former officers, directors, consultants or employees of the Borrower in the ordinary course of business consistent with past practice and (iii) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exercisable for Equity Interests of the Borrower;
(b)    a Group Member makes any payment of any kind under any shareholder loan;
(c)    a Group Member sells, transfers, leases or otherwise disposes of any its assets, whether by one or a series of related transactions and that disposal or action was not conducted on arms' length terms between a willing seller and a willing buyer and for fair market value;
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(d)    any Group Member breaches any of the requirements of Section 7.1.1(i), Section 7.1.1(l), Section 7.1.1(n), Section 7.1.1(o), Section 7.1.8, Section 7.1.10, Section 7.2.4(A) or Section 7.2.4(B);
(e)    a Group Member completes a Debt Incurrence;
(f)    a Group Member enters into a Restricted Loan Arrangement; and/or
(g)    a Group Member makes a Restricted Voluntary Prepayment and the Facility Agent (acting upon the instructions of BpiFAE) notifies the Borrower that BpiFAE has confirmed that the Financial Covenant Waiver Period shall come to an end.
Section 9.1.12        Breach of Principles and Framework     .
The Borrower shall default in the due performance and observance of the Principles and/or the Framework (it being agreed that if there is inconsistency between the terms of the Principles and the Framework, the Framework shall prevail) and, if capable of remedy, such default shall continue unremedied for a period of ten (10) days after notice thereof shall have been given to the Borrower by the Facility Agent, provided that, if the default does not otherwise constitute a Default or a Prepayment Event under another section of this Agreement as amended to date, the Borrower, the Facility Agent, the ECA Agent and BpiFAE shall negotiate a resolution in good faith for a maximum period of fifteen (15) days after notice thereof shall have been given to the Borrower by the Facility Agent.
SECTION 9.2.    Mandatory Prepayment. If any Prepayment Event (other than a Prepayment Event under Section 9.1.10) shall occur and be continuing, the Facility Agent, upon the direction of the Required Lenders, shall by notice to the Borrower require the Borrower to prepay in full on the date of such notice all principal of and interest on the Loan and all other Obligations (and, in such event, the Borrower agrees to so pay the full unpaid amount of the Loan and all accrued and unpaid interest thereon and all other Obligations), provided that in the case of a Prepayment Event arising under Sections 9.1.11 or 9.1.12, such Prepayment Event shall not give rise to an entitlement on the part of the Lenders to terminate the Commitments or, where the Loan has been advanced, to require that the Loan is prepaid but instead, where a notice is given by the Facility Agent pursuant to this Section 9.2 following the occurrence of a Prepayment Event under either Section 9.1.11 or 9.1.12, the waiver of Section 7.2.4 contained in Section 9.1.4 shall immediately cease such that any breach of Section 7.2.4 in existence as at the date of the notice from the Facility Agent referred to in the first sentence of this Section 9.2 or any breach occurring at any time after such notice shall constitute a Prepayment Event with all attendant consequences.
SECTION 9.3.    Mitigation. If the ECA Agent, the Facility Agent or any of the Lenders become aware that an event or circumstance has arisen which will cause the BpiFAE Insurance Policy to be cancelled for any reason or no longer remain in full force and effect they shall notify the Borrower and the Lenders, the Borrower, the ECA Agent and the Facility Agent shall negotiate in good faith for a period of up to 30 days or, if less, the date by which the BpiFAE Insurance Policy shall be terminated or cease to be in full force and effect to determine whether the facility can be restructured and/or the Loan refinanced in a manner acceptable to each of the Lenders in their absolute discretion. The Lenders will use reasonable efforts to involve BpiFAE in such negotiations.
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ARTICLE X
THE FACILITY AGENT AND THE ECA AGENT
SECTION 10.1.    Actions. Each Lender hereby appoints Citibank Europe plc, UK Branch, as Facility Agent and SMBC Bank International plc as ECA Agent, as its agent under and for purposes of this Agreement and each other Loan Document (for purposes of this Article X, the Facility Agent and the ECA Agent are referred to collectively as the “Agents”). Each Lender authorizes the Agents to act on behalf of such Lender under this Agreement and each other Loan Document and, in the absence of other written instructions from the Required Lenders received from time to time by the Agents (with respect to which each Agent agrees that it will comply, except as otherwise provided in this Section 10.1 or as otherwise advised by counsel or as otherwise instructed by any French Authority, it being understood and agreed that any instructions provided by a French Authority shall prevail), to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Agents by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto. Neither Agent shall be obliged to act on the instructions of any Lender or the Required Lenders if to do so would, in the opinion of such Agent, be contrary to any provision of this Agreement or any other Loan Document or the BpiFAE Insurance Policy or to any law or the conflicting instructions of any French Authority, or would expose such Agent to any actual or potential liability to any third party. As between the Lenders and the Agents, it is acknowledged that each Agent’s duties under this Agreement and the other Loan Documents are solely mechanical and administrative in nature.
SECTION 10.2.    Indemnity. Each Lender hereby indemnifies (which indemnity shall survive any termination of this Agreement) each Agent, pro rata according to such Lender’s Percentage, from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel) that be incurred by or asserted or awarded against, such Agent in any way relating to or arising out of this Agreement and any other Loan Document or any action taken or omitted by such Agent under this Agreement or any other Loan Document; provided that no Lender shall be liable for the payment of any portion of such claims, damages, losses, liabilities and expenses which have resulted from such Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that such Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any such indemnified costs, this Section applies whether any such investigation, litigation or proceeding is brought by any Agent, any Lender or a third party. Neither Agent shall be required to take any action hereunder or under any other Loan Document, or to prosecute or defend any suit in respect of this Agreement or any other Loan Document, unless it is expressly required to do so under this Agreement or is indemnified hereunder to its satisfaction. If any indemnity in favor of an Agent shall be or become, in such Agent’s determination, inadequate, such Agent may call for additional indemnification from the Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given.
SECTION 10.3.    Funding Reliance, etc.
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(a)    Each Lender shall notify the Facility Agent by 4:00 p.m., London time, one day prior to the advance of the Loan if it is not able to fund the following day. Unless the Facility Agent shall have been notified by telephone, confirmed in writing, by any Lender by 4:00 p.m., London time, on the day prior to the advance of the Loan that such Lender will not make available the amount which would constitute its Percentage of the Loan on the date specified therefor, the Facility Agent may assume that such Lender has made such amount available to the Facility Agent and, in reliance upon such assumption, may, but shall not be obliged to, make available to the Borrower a corresponding amount. If and to the extent that such Lender shall not have made such amount available to the Facility Agent, such Lender and the Borrower severally agree to repay the Facility Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date the Facility Agent made such amount available to the Borrower to the date such amount is repaid to the Facility Agent, at the interest rate applicable at the time to the Loan without premium or penalty.
(b)    
(i)     Where a sum is to be paid to an Agent under the Finance Documents for another party to this Agreement, that Agent is not obliged to pay that sum to that other party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum
(ii) Unless paragraph (iii) below applies, if an Agent or its Affiliate or representative on its behalf or at its direction in performing the role of Agent (that Agent and its applicable Affiliate or representative being an “Agent Entity”) pays an amount to another party to this Agreement (unless sub-paragraph (iii) below applies) or, at the direction of such party, that party’s Affiliate, related fund or representative (such other party and its applicable Affiliate, related fund or representative being an “Other Party Entity”) and it proves to be the case (and for this purpose a statement of the relevant Agent given in good faith shall be prima facie evidence of this) that (A) neither that Agent nor the applicable Agent Entity actually received that amount or (B) such amount was otherwise paid in error (whether such error was known or ought to have been known to such other party or applicable Other Party Entity), then the party to whom that amount (or the proceeds of any related exchange contract) was paid (or on whose direction its applicable Other Party Entity was paid) by the applicable Agent Entity shall hold such amount on trust or, to the extent not possible as a matter of law, for the account (or will procure that its applicable Other Party Entity holds on trust or for the account) of the Agent Entity and on demand (or will procure that its applicable Other Party Entity shall on demand) refund the same to the Agent Entity together with interest on that amount from the date of payment to the date of receipt by the Agent Entity, calculated by the Agent to reflect its cost of funds.
(iii) If an Agent, upon the Borrower’s written request, is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then, if and to the extent that such Agent does so but it proves to be the case (and for this purpose a statement of the relevant Agent given in
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good faith shall be prima facie evidence of this) that it does not then receive funds from a Lender (such Lender being a “Defaulting Lender”) in respect of such sum which it paid to the Borrower (or as it may direct) then: (A) the Agent shall notify (and the Lenders expressly acknowledge that the Agent shall be entitled to so notify) the Borrower of the identity of the Defaulting Lender; (B) without prejudice to any rights of the Borrower against the Defaulting Lender under this Agreement (including, without limitation, in relation to any amounts required to be paid by the Borrower under sub-paragraph (C) below) the Borrower shall (or shall procure that its applicable Other Party Entity to whom such amount was paid shall) hold such amount on trust or, to the extent not possible as a matter of law, for the account, of the relevant Agent and on demand refund it to that Agent; and (C) the Defaulting Lender by whom those funds should have been made available or, if that Defaulting Lender fails to do so (and having regard to paragraph (iv) below), the Borrower shall on demand pay to the relevant Agent the amount (as certified by that Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from the Defaulting Lender
(iv)    It is expressly acknowledged and agreed that, without prejudice to the requirement of the Borrower to make the payments referred to in paragraphs (ii) and (iii) above:
(A) the Borrower shall not be obliged to pay interest for the account of the Defaulting Lender on the part of the Loan that was not made available by that Defaulting Lender but which was pre-funded by the relevant Agent pursuant to this Section 10.3(b); and
(B) the Defaulting Lender shall indemnify the Borrower for any costs, losses or liabilities incurred by the Borrower arising from the Defaulting Lender’s failure to make any payment under sub-Section (iii) above.
SECTION 10.4.    Exculpation. Neither of the Agents nor any of their respective directors, officers, employees or agents shall be liable to any Lender for any action taken or omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for its own willful misconduct or gross negligence. Without limitation of the generality of the foregoing, each Agent (i) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it and in accordance with the advice of such counsel, accountants or experts, (ii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement, (iii) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of the Obligors or the existence at any time of any Default or Prepayment Event or to inspect the property (including the books and records) of the Obligors, (iv) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto, (v) shall incur no liability under or in respect of this Agreement by action upon any notice, consent, certificate or other instrument or writing
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(which may be by telecopier) believed by it to be genuine and signed or sent by the proper party or parties, and (vi) shall have no responsibility to the Borrower or any Lender on account of (A) the failure of a Lender or the Obligors to perform any of its obligations under this Agreement or any Loan Document; (B) the financial condition of the Obligors; (C) the completeness or accuracy of any statements, representations or warranties made in or pursuant to this Agreement or any Loan Document, or in or pursuant to any document delivered pursuant to or in connection with this Agreement or any Loan Document; or (D) the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of this Agreement or any Loan Document or of any document executed or delivered pursuant to or in connection with any Loan Document.
SECTION 10.5.    Successor. The Facility Agent may resign as such at any time upon at least 30 days’ prior notice to the Borrower and all Lenders and shall resign where required to do in accordance with Section 4.14, provided that any such resignation shall not become effective until a successor Facility Agent has been appointed as provided in this Section 10.5 and such successor Facility Agent has accepted such appointment. If the Facility Agent at any time shall resign, the Required Lenders shall, subject to the immediately preceding proviso and subject to the consent of the Borrower (such consent not to be unreasonably withheld), appoint another Lender as a successor to the Facility Agent which shall thereupon become such Facility Agent’s successor hereunder (provided that the Required Lenders shall, subject to the consent of the Borrower unless an Event of Default or a Prepayment Event shall have occurred and be continuing (such consent not to be unreasonably withheld or delayed) offer to each of the other Lenders in turn, in the order of their respective Percentages of the Loan, the right to become successor Facility Agent). If no successor Facility Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the Facility Agent’s giving notice of resignation, then the Facility Agent may, on behalf of the Lenders, appoint a successor Facility Agent, which shall be one of the Lenders or a commercial banking institution having a combined capital and surplus of at least $1,000,000,000 (or the equivalent in other currencies), subject, in each case, to the consent of the Borrower (such consent not to be unreasonably withheld). Upon the acceptance of any appointment as Facility Agent hereunder by a successor Facility Agent, such successor Facility Agent shall be entitled to receive from the resigning Facility Agent such documents of transfer and assignment as such successor Facility Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the resigning Facility Agent, and the resigning Facility Agent shall be discharged from its duties and obligations under this Agreement. After any resigning Facility Agent’s resignation hereunder as the Facility Agent, the provisions of:
(a)    this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Facility Agent under this Agreement; and
(b)    Section 11.3 and Section 11.4 shall continue to inure to its benefit.
If a Lender acting as the Facility Agent assigns its Loan to one of its Affiliates, such Facility Agent may, subject to the consent of the Borrower (such consent not to be unreasonably withheld or delayed) assign its rights and obligations as Facility Agent to such Affiliate.
SECTION 10.6.    Loans by the Facility Agent. The Facility Agent shall have the same rights and powers with respect to the Loan made by it or any of its Affiliates. The Facility Agent and its Affiliates may accept deposits from, lend money to, and generally
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engage in any kind of business with the Borrower or any Affiliate of the Borrower as if the Facility Agent were not the Facility Agent hereunder and without any duty to account therefor to the Lenders. The Facility Agent shall have no duty to disclose information obtained or received by it or any of its Affiliates relating to the Borrower or its Subsidiaries to the extent such information was obtained or received in any capacity other than as the Facility Agent.
SECTION 10.7.    Credit Decisions. Each Lender acknowledges that it has, independently of each Agent and each other Lender, and based on such Lender’s review of the financial information of the Obligors, this Agreement, the other Loan Documents (the terms and provisions of which being satisfactory to such Lender) and such other documents, information and investigations as such Lender has deemed appropriate, made its own credit decision to extend its Commitment. Each Lender also acknowledges that it will, independently of each Agent and each other Lender, and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under this Agreement or any other Loan Document.
SECTION 10.8.    Copies, etc. Each Agent shall give prompt notice to each Lender of each notice or request required or permitted to be given to such Agent by the Borrower pursuant to the terms of this Agreement (unless concurrently delivered to the Lenders by the Borrower). Each Agent will distribute to each Lender each document or instrument received for its account and copies of all other communications received by such Agent from the Borrower for distribution to the Lenders by such Agent in accordance with the terms of this Agreement.
SECTION 10.9.    The Agents’ Rights. Each Agent may (i) assume that all representations or warranties made or deemed repeated by the Obligors in or pursuant to this Agreement or any Loan Document are true and complete, unless, in its capacity as the Facility Agent, it has acquired actual knowledge to the contrary, (ii) assume that no Default has occurred unless, in its capacity as an Agent, it has acquired actual knowledge to the contrary, (iii) rely on any document or notice believed by it to be genuine, (iv) rely as to legal or other professional matters on opinions and statements of any legal or other professional advisers selected or approved by it, (v) rely as to any factual matters which might reasonably be expected to be within the knowledge of the Borrower on a certificate signed by or on behalf of the Borrower and (vi) refrain from exercising any right, power, discretion or remedy unless and until instructed to exercise that right, power, discretion or remedy and as to the manner of its exercise by the Lenders (or, where applicable, by the Required Lenders) and unless and until such Agent has received from the Lenders any payment which such Agent may require on account of, or any security which such Agent may require for, any costs, claims, expenses (including legal and other professional fees) and liabilities which it considers it may incur or sustain in complying with those instructions.
SECTION 10.10.    The Facility Agent’s Duties. The Facility Agent shall (i) if requested in writing to do so by a Lender, make enquiry and advise the Lenders as to the performance or observance of any of the provisions of this Agreement or any Loan Document by the Borrower or as to the existence of an Event of Default and (ii) inform the Lenders promptly of any Event of Default of which the Facility Agent has actual knowledge.
The Facility Agent shall not be deemed to have actual knowledge of the falsehood or incompleteness of any representation or warranty made or deemed repeated by the Obligors
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or actual knowledge of the occurrence of any Default unless a Lender or the Borrower shall have given written notice thereof to the Facility Agent in its capacity as the Facility Agent. Any information acquired by the Facility Agent other than specifically in its capacity as the Facility Agent shall not be deemed to be information acquired by the Facility Agent in its capacity as the Facility Agent.
The Facility Agent may, without any liability to account to the Lenders, generally engage in any kind of banking or trust business with the Borrower or with the Borrower’s Subsidiaries or associated companies or with a Lender as if it were not the Facility Agent.
SECTION 10.11.    Employment of Agents. In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to this Agreement or the Loan Documents, each Agent shall be entitled to employ and pay agents to do anything which such Agent is empowered to do under or pursuant to this Agreement or the Loan Documents (including the receipt of money and documents and the payment of money); provided that, unless otherwise provided herein, including without limitation Section 11.3, the employment of such agents shall be for such Agent’s account, and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by such Agent in good faith to be competent to give such opinion, advice or information.
SECTION 10.12.    Distribution of Payments. The Facility Agent shall pay promptly to the order of each Lender that Lender’s Percentage share of every sum of money received by the Facility Agent pursuant to this Agreement or the Loan Documents (including, without limitation, any amounts payable pursuant to Section 4.4.1 but not including any amounts payable pursuant to the Fee Letter and any amounts which, by the terms of this Agreement or the Loan Documents, are paid to the Facility Agent for the account of the Facility Agent alone or specifically for the account of one or more Lenders) and until so paid such amount shall be held by the Facility Agent on trust absolutely for that Lender.
SECTION 10.13.    Reimbursement. The Facility Agent shall have no liability to pay any sum to a Lender until it has itself received payment of that sum. If, however, the Facility Agent does pay any sum to a Lender on account of any amount prospectively due to that Lender pursuant to Section 10.12 before it has itself received payment of that amount, and the Facility Agent does not in fact receive payment within two (2) Business Days after the date on which that payment was required to be made by the terms of this Agreement or the Loan Documents, that Lender will, on demand by the Facility Agent, refund to the Facility Agent an amount equal to the amount received by it, together with an amount sufficient to reimburse the Facility Agent for any amount which the Facility Agent may certify that it has been required to pay by way of interest on money borrowed to fund the amount in question during the period beginning on the date on which that amount was required to be paid by the terms of this Agreement or the Loan Documents and ending on the date on which the Facility Agent receives reimbursement.
SECTION 10.14.    Instructions. Where an Agent is authorized or directed to act or refrain from acting in accordance with the instructions of the Lenders or of the Required Lenders each of the Lenders shall provide such Agent with instructions within three (3) Business Days of such Agent’s request (which request may be made orally or in writing). If a Lender does not provide such Agent with instructions within that period, that Lender shall be bound by the decision of such Agent. Nothing in this Section 10.14 shall limit the right of such Agent to take, or refrain from taking, any action without obtaining the
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instructions of the Lenders or the Required Lenders if such Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Lenders under or in connection with this Agreement or the Loan Documents. In that event, such Agent will notify the Lenders of the action taken by it as soon as reasonably practicable, and the Lenders agree to ratify any action taken by the Facility Agent pursuant to this Section 10.14.
SECTION 10.15.    Payments. All amounts payable to a Lender under this Section 10 shall be paid to such account at such bank as that Lender may from time to time direct in writing to the Facility Agent.
SECTION 10.16.    “Know your customer” Checks. Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in this Agreement or the Loan Documents.
SECTION 10.17.    No Fiduciary Relationship. Except as provided in Section 10.12, no Agent shall have any fiduciary relationship with or be deemed to be a trustee of or for any other person and nothing contained in this Agreement or any Loan Document shall constitute a partnership between any two or more Lenders or between either Agent and any other person.
SECTION 10.18.    Illegality. The Agent shall refrain from doing anything which it reasonably believes would be contrary to any law of any jurisdiction (including but not limited to England and Wales, the United States of America or any jurisdiction forming part of it) or any regulation or directive of any agency of such state or jurisdiction or which would or might render it liable to any person and may without liability do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
ARTICLE XI

MISCELLANEOUS PROVISIONS
SECTION 11.1.    Waivers, Amendments, etc. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrower and the Required Lenders; provided that no such amendment, modification or waiver which would:
(a)    contravene or be in breach of the terms of the BpiFAE Insurance Policy or the arrangements with Natixis DAI relating to the CIRR (if the Fixed Rate applies) shall be effective unless consented to by, as applicable, BpiFAE and/or Natixis DAI;
(b)    modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
(c)    modify this Section 11.1 or change the definition of “Required Lenders” shall be made without the consent of each Lender;
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(d)    increase the Commitment of any Lender shall be made without the consent of such Lender;
(e)    reduce any fees described in Article III payable to any Lender shall be made without the consent of such Lender;
(f)    extend the Commitment Termination Date of any Lender shall be made without the consent of such Lender;
(g)    extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on the Loan (or reduce the principal amount of or rate of interest on the Loan) owed to any Lender shall be made without the consent of such Lender; or
(h)    affect adversely the interests, rights or obligations of the Facility Agent in its capacity as such shall be made without consent of the Facility Agent.
No failure or delay on the part of the Facility Agent or any Lender in exercising any power or right under this Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by any the Facility Agent or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The Lenders hereby agree, at any time and from time to time that the Nordea Agreement or the Bank of Nova Scotia Agreement is amended or refinanced, to negotiate in good faith to amend this Agreement to conform any representations, warranties, covenants or events of default in this Agreement to the amendments made to any substantively comparable provisions in the Nordea Agreement or the Bank of Nova Scotia Agreement or any refinancing thereof.
Neither the Borrower’s rights nor its obligations under the Loan Documents shall be changed, directly or indirectly, as a result of any amendment, supplement, modification, variance or novation of the BpiFAE Insurance Policy, except any amendments, supplements, modifications, variances or novations, as the case may be, which occur (i) with the Borrower’s consent, (ii) at the Borrower’s request or (iii) in order to conform to amendments, supplements, modifications, variances or novations effected in respect of the Loan Documents in accordance with their terms.
SECTION 11.2.    Notices.
(a)    All notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing, by facsimile or by electronic mail and addressed, delivered or transmitted to such party at its address, facsimile number or electronic mail address set forth below its signature hereto or set forth in the Lender Assignment Agreement or at such other address, or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile,
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shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient.
(b)    So long as Citibank Europe plc, UK Branch is the Facility Agent, the Borrower may provide to the Facility Agent all information, documents and other materials that it furnishes to the Facility Agent hereunder or any other Loan Document (and any guaranties, security agreements and other agreements relating thereto), including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing advance or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due hereunder or any other Loan Document prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of the Agreement and/or any advance or other extension of credit hereunder (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Facility Agent to such email address notified by the Facility Agent to the Borrower; provided that any Communication requested pursuant to Section 7.1.1(h) shall be in a format acceptable to the Borrower and the Facility Agent.
(c)    The Borrower agrees that the Facility Agent may make such items included in the Communications as the Borrower may specifically agree available to the Lenders by posting such notices, at the option of the Borrower, on Intralinks or any similar such platform (the “Platform”) acceptable to the Borrower. Although the primary web portal is secured with a dual firewall and a User ID/Password Authorization System and the Platform is secured through a single user per deal authorization method whereby each user may access the Platform only on a deal-by-deal basis, the Borrower acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Facility Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Facility Agent or any of its Affiliates in connection with the Platform.
(d)    The Facility Agent agrees that the receipt of Communications by the Facility Agent at its e-mail address set forth above shall constitute effective delivery of such Communications to the Facility Agent for purposes hereunder and any other Loan Document (and any guaranties, security agreements and other agreements relating thereto).
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SECTION 11.3.    Payment of Costs and Expenses. The Borrower agrees to pay on demand all reasonable expenses of the Facility Agent (including the reasonable fees and out-of-pocket expenses of counsel to the Facility Agent and of local counsel, if any, who may be retained by counsel to the Facility Agent) in connection with any amendments, waivers, consents, supplements or other modifications to, this Agreement or any other Loan Document as may from time to time hereafter be required, whether or not the transactions contemplated hereby are consummated. The Borrower further agrees to pay, and to save the Facility Agent and the Lenders harmless from all liability for, any stamp, recording, documentary or other similar taxes arising from the execution, delivery or enforcement of this Agreement or the borrowing hereunder or any other Loan Documents. The Borrower also agrees to reimburse the Facility Agent and each Lender upon demand for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and legal expenses) incurred by the Facility Agent or such Lender in connection with (x) the negotiation of any restructuring or “work-out”, whether or not consummated, of any Obligations and (y) the enforcement of any Obligations.
SECTION 11.4.    Indemnification. In consideration of the execution and delivery of this Agreement by each Lender and the extension of the Commitments, the Borrower hereby indemnifies and holds harmless the Facility Agent, each Lender and each of their respective Affiliates and their respective officers, advisors, directors and employees (collectively, the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case arising out of or in connection with or by reason of this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby or any actual or proposed use of the proceeds of the Loans (collectively, the “Indemnified Liabilities”), except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct or the material breach by such Indemnified Party of its obligations under this Agreement, any other Loan Document, the BpiFAE Insurance Policy or Interest Stabilisation Agreement and which breach is not attributable to the Borrower’s own breach of the terms of this Agreement or any other Loan Document or is a claim, damage, loss, liability or expense which would have been compensated under other provisions of the Loan Documents but for any exclusions applicable thereunder.
In the case of an investigation, litigation or other proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its directors, security holders or creditors, an Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto. Each Indemnified Party shall (a) furnish the Borrower with prompt notice of any action, suit or other claim covered by this Section 11.4, (b) not agree to any settlement or compromise of any such action, suit or claim without the Borrower’s prior consent, (c) 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) and (d) at the Borrower’s request, permit the Borrower to assume control of the defense of any such claim, other than regulatory, supervisory or similar investigations, provided that (i) the Borrower acknowledges in writing its obligations to
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indemnify the Indemnified Party in accordance with the terms herein in connection with such claims, (ii) the Borrower shall keep the Indemnified Party fully informed with respect to the conduct of the defense of such claim, (iii) the Borrower shall consult in good faith with the Indemnified Party (from time to time and before taking any material decision) about the conduct of the defense of such claim, (iv) the Borrower shall conduct the defense of such claim properly and diligently taking into account its own interests and those of the Indemnified Party, (v) the Borrower shall employ counsel reasonably acceptable to the Indemnified Party and at the Borrower’s expense, and (vi) the Borrower shall not enter into a settlement with respect to such claim unless either (A) such settlement involves only the payment of a monetary sum, does not include any performance by or an admission of liability or responsibility on the part of the Indemnified Party, and contains a provision unconditionally releasing the Indemnified Party and each other indemnified party from, and holding all such persons harmless, against, all liability in respect of claims by any releasing party or (B) the Indemnified Party provides written consent to such settlement (such consent not to be unreasonably withheld or delayed). Notwithstanding the Borrower’s election to assume the defense of such action, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such action and the Borrower shall bear the fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Borrower to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Borrower and the Indemnified Party and the Indemnified Party shall have concluded that there may be legal defenses available to it which are different from or additional to those available to the Borrower and determined that it is necessary to employ separate counsel in order to pursue such defenses (in which case the Borrower shall not have the right to assume the defense of such action on the Indemnified Party’s behalf), (iii) the Borrower shall not have employed counsel reasonably acceptable to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action, or (iv) the Borrower authorizes the Indemnified Party to employ separate counsel at the Borrower’s expense. The Borrower acknowledges that none of the Indemnified Parties shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Borrower or any of its security holders or creditors for or in connection with the transactions contemplated hereby, except to the extent such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct. In no event, however, shall any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings). If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
SECTION 11.5.    Survival. The obligations of the Borrower under Sections 4.3, 4.4, 4.5, 4.6, 4.7, 11.3 and 11.4 and the obligations of the Lenders under Section 10.1, shall in each case survive any termination of this Agreement and the payment in full of all Obligations. The representations and warranties made by the Borrower in this Agreement and in each other Loan Document shall survive the execution and delivery of this Agreement and each such other Loan Document.
SECTION 11.6.    Severability. Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to
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such provision and such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or such Loan Document or affecting the validity or enforceability of such provision in any other jurisdiction.
SECTION 11.7.    Headings. The various headings of this Agreement and of each other Loan Document are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or such other Loan Document or any provisions hereof or thereof.
SECTION 11.8.    Execution in Counterparts, Effectiveness, etc. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. This Agreement, as a novated and amended Agreement, shall become effective upon the occurrence of the Novation Effective Time under, and as defined in, the Novation Agreement.
SECTION 11.9.    Third Party Rights. Notwithstanding the provisions of the Contracts (Rights of Third Parties) Act 1999, no term of this Agreement is enforceable by a person who is not a party to it with the exception of BpiFAE and Natixis.
SECTION 11.10.    Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided that:
(a)    except to the extent permitted under Section 7.2.6, the Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of the Facility Agent, each Lender and BpiFAE; and
(b)    the rights of sale, assignment and transfer of the Lenders are subject to Section 11.11.
SECTION 11.11.    Sale and Transfer of the Loan; Participations in the Loan. Each Lender may assign its Percentage or portion of the Loan to one or more other Persons (a “New Lender”), or sell participations in its Percentage or portion of the Loan to one or more other Persons; provided that, in the case of assignments where the Fixed Rate applies, such New Lender (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, and subject as provided in Section 11.11.1(iv)) enters into an Interest Stabilisation Agreement.
SECTION 11.11.1    Assignments.
(i)    Any Lender with the prior written consents of the Borrower and the Facility Agent (which consents shall not be unreasonably delayed or withheld and which consent, in the case of the Borrower, shall be deemed to have been given in the absence of a written notice delivered by the Borrower to the Facility Agent, on or before the fifth Business Day after receipt by the Borrower of such Lender’s request for consent, stating, in reasonable detail, the reasons why the Borrower proposes to withhold such consent) may at any time (and from time to time) assign or transfer to one or more commercial banks or other financial institutions all or any fraction of such Lender’s portion of the Loan.
(ii)    Any Lender, with notice to the Borrower and the Facility Agent, and,
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notwithstanding the foregoing clause (i), without the consent of the Borrower, or the Facility Agent may assign or transfer (A) to any of its Affiliates, (B) to SFIL or (C) following the occurrence and during the continuance of an Event of Default under Sections 8.1.1, 8.1.4(a) or 8.1.5, to any other Person, in each case, all or any fraction of such Lender’s portion of the Loan.
(iii)    Any Lender may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign or charge all or any fraction of its portion of the Loan to any federal reserve or central bank as collateral security in connection with the extension of credit or support by such federal reserve or central bank to such Lender.
(iv)    SFIL may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign, charge or otherwise grant security over all or any fraction of its portion of the Loan and of its rights as Lender to CAFFIL as collateral security in connection with the extension of credit or support by CAFFIL to SFIL in respect of this Agreement and the BpiFAE Enhanced Guarantee, provided that at the time of the assignment, charge or grant of security CAFFIL is an Affiliate of SFIL and that such assignment, charge or other security is on terms that (i) CAFFIL shall not have any rights to assign, charge or grant any security over such rights to any other person (other than to BpiFAE pursuant to and in accordance with the BpiFAE Enhanced Guarantee) without the prior written consent of the Borrower, (ii) CAFFIL shall only be entitled to enforce its rights under such assignment, charge or other security without the prior written consent of the Borrower if at that time it remains an Affiliate of SFIL, (iii) prior to any enforcement such assignment, charge or other security, the Borrower and the Facility Agent shall continue to deal solely and directly with SFIL in connection with its rights and obligations as Lender under this Agreement and other Loan Documents (subject to any payment instructions given by SFIL), (iv) for the avoidance of doubt, the Borrower’s rights and obligations under this Agreement shall not be increased or affected (including, without limitation, the right to pay Fixed Rate under Section 3.3.1) as a result of such assignment, charge or security or any enforcement thereof, (v) the Borrower shall not be liable to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay to SFIL had no such assignment, charge or other security been granted and (vi) without prejudice to SFIL’s obligations under that Section, CAFFIL shall be bound by the confidentiality provisions set forth in Section 11.15. in relation to any information to which it applies to the same extent as required of the Lenders. For the avoidance of doubt: (A) if CAFFIL becomes a Lender under this Agreement in respect of any portion of the Loan following enforcement of any assignment, charge or other security granted to it by SFIL pursuant to this Section 11.11.1(iv), it shall have the same rights to assign or transfer all or any fraction of such portion of the Loan on and subject to the same terms and conditions as are set forth
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in this Agreement for assignments and transfers by other Lenders and (B) CAFFIL may not enforce its rights under any such assignment, charge or other security by assigning or transferring all or any fraction of SFIL’s portion of the Loan or any of its rights or obligations under this Agreement or other Loan Documents except pursuant to an assignment or transfer to a commercial bank or other financial institution on and subject to the same terms and conditions as are set forth in this Agreement for assignments and transfers by Lenders.
(v)    No Lender may (notwithstanding the foregoing clauses) assign or transfer any of its rights under this Agreement unless it has given prior written notification of the transfer to BpiFAE and (if the Loan is accruing interest at the Fixed Rate) Natixis DAI and has obtained a prior written consent from BpiFAE and Natixis DAI and any Assignee Lender (other than BpiFAE and CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1(iv)) is, if the Fixed Rate applies, eligible to benefit from the CIRR stabilisation. Any assignment or transfer shall comply with the terms of the BpiFAE Insurance Policy.
(vi)    Nothing in this Section 11.11.1 shall prejudice the right of the Lender to assign its rights under this Agreement to BpiFAE, if such assignment is required to be made by that Lender to BpiFAE in accordance with the BpiFAE Insurance Policy or the BpiFAE Enhanced Guarantee or, if the Lender is SFIL, to CAFFIL (but only if CAFFIL is, at that time, an Affiliate of SFIL) upon the enforcement of any security granted pursuant, and subject to the provisions of paragraph (iv) of Section 11.11.1, in connection with the BpiFAE Enhanced Guarantee.
Each Person described in the foregoing clauses as being the Person to whom such assignment or transfer is to be made, is hereinafter referred to as an “Assignee Lender”. Assignments in a minimum aggregate amount of $25,000,000 (or, if less, all of such Lender’s portion of the Loan and Commitment) (which assignment or transfer shall be of a constant, and not a varying, percentage of such Lender’s portion of the Loan) are permitted; provided that the Borrower and the Facility Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned or transferred to an Assignee Lender until:
(a)    written notice of such assignment or transfer, together with payment instructions, addresses and related information with respect to such Assignee Lender, shall have been given to the Borrower and the Facility Agent by such Lender and such Assignee Lender;
(b)    such Assignee Lender shall have executed and delivered to the Borrower and the Facility Agent a Lender Assignment Agreement, accepted by the Facility Agent and any other agreements required by the Facility Agent or, if the Fixed Rate applies, Natixis in connection therewith; and
(c)    the processing fees described below shall have been paid.
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From and after the date that the Facility Agent accepts such Lender Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to have become a party hereto and to the extent that rights and obligations hereunder have been assigned or transferred to such Assignee Lender in connection with such Lender Assignment Agreement, shall have the rights and obligations of a Lender hereunder and under the other Loan Documents, and (y) the assignor Lender, to the extent that rights and obligations hereunder have been assigned or transferred by it, shall be released from its obligations hereunder and under the other Loan Documents, other than any obligations arising prior to the effective date of such assignment. Except to the extent resulting from a subsequent change in law, in no event shall the Borrower be required to pay to any Assignee Lender any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no such assignment been made. Such assignor Lender or such Assignee Lender must also pay a processing fee to the Facility Agent upon delivery of any Lender Assignment Agreement in the amount of $5,000 (and shall also reimburse the Facility Agent and Natixis for any reasonable out-of-pocket costs, including reasonable attorneys’ fees and expenses, incurred in connection with the assignment).
SECTION 11.11.2    Participations. Any Lender may at any time sell to one or more commercial banks or other financial institutions (each of such commercial banks and other financial institutions being herein called a “Participant”) participating interests in its Loan; provided that:
(a)    no participation contemplated in this Section 11.11.2 shall relieve such Lender from its obligations hereunder;
(b)    such Lender shall remain solely responsible for the performance of its obligations hereunder;
(c)    the Borrower and the Facility Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and each of the other Loan Documents;
(d)    no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant’s consent, take any actions of the type described in clauses (b) through (f) of Section 11.1;
(e)    the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no participating interest been sold; and
(f)    each Lender that sells a participation under this Section 11.11.2 shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each of the Participant’s interest in that Lender’s portion of the Loan, Commitments or other interests hereunder (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender may treat each person whose
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name is recorded in the Participant Register as the owner of such participation for all purposes hereunder.
The Borrower acknowledges and agrees that each Participant, for purposes of Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and clause (e) of 7.1.1, shall be considered a Lender.
SECTION 11.11.3    Register. The Facility Agent shall maintain at its address referred to in Section 11.2 a copy of each Lender Assignment Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment(s) of, and principal amount of the Loan owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Facility Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
SECTION 11.11.4    Rights of BpiFAE to payments. The Borrower acknowledges that, immediately upon any payment by BpiFAE (i) of any amounts to a Lender under the BpiFAE Insurance Policy, BpiFAE will be automatically subrogated to the extent of such payment to the rights of that Lender under the Loan Documents or (ii) of any amount under the BpiFAE Enhanced Guarantee and the enforcement of any related security granted by SFIL to any of its Affiliates, which may benefit BpiFAE after payment by BpiFAE under the BpiFAE Enhanced Guarantee, BpiFAE will be automatically entitled to receive the payments normally due to SFIL under the Loan Documents (but, for the avoidance of doubt, such payments shall continue to be made by the Borrower to the Facility Agent in accordance with the provisions of Section 4.8 or any other relevant provisions of this Agreement, as applicable).
SECTION 11.12.    Other Transactions. Nothing contained herein shall preclude the Facility Agent or any Lender from engaging in any transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or any of its Affiliates in which the Borrower or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13.    BpiFAE Insurance Policy.
SECTION 11.13.1    Terms of BpiFAE Insurance Policy.
(a)    The BpiFAE Insurance Policy will cover 100% of the Loan.
(b)    The BpiFAE Premium will equal 3% of the aggregate principal amount of the Loan as at the Actual Delivery Date.
(c)    If, after the Actual Delivery Date, the Borrower prepays all or part of the Loan in accordance with this Agreement, BpiFAE shall reimburse to the ECA Agent for the account of the Borrower an amount equal to 80% of all or a corresponding proportion of the unexpired portion of the BpiFAE Premium, having regard to the amount of the prepayment and the remaining term of the Loan, such amount to be calculated in accordance with the following formula:
R = P x (1 – (1 / (1+3%)) x (N / (12 * 365)) x 80%
where:
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“R” means the amount of the refund;
“P” means the amount of the prepayment;
“N” means the number of days between the effective prepayment date and Final Maturity; and
P x (1 – (1 / (1+3%))) corresponds to the share of the financed BpiFAE Premium corresponding to P.
SECTION 11.13.2    Obligations of the Borrower. Provided that the BpiFAE Insurance Policy complies with Section 11.13.1 and remains in full force and effect, the Borrower shall pay the balance of the BpiFAE Premium calculated in accordance with Section 11.13.1(b) and still owing to BpiFAE on the Actual Delivery Date to BpiFAE on the Actual Delivery Date by directing the Agent in the Loan Request to pay the Additional Advance in respect of the BpiFAE Premium directly to BpiFAE.
SECTION 11.13.3    Obligations of the ECA Agent and the Lenders.
(a)    Promptly upon receipt of the BpiFAE Insurance Policy from BpiFAE, the ECA Agent shall (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE Insurance Policy) send a copy thereof to the Borrower.
(b)    The ECA Agent shall perform such acts or provide such information, which are, acting reasonably, within its power so to perform or so to provide, as required by BpiFAE under the BpiFAE Insurance Policy as necessary to ensure that the Lenders obtain the support of BpiFAE pursuant to the BpiFAE Insurance Policy.
(c)    Each Lender will co-operate with the ECA Agent, the Facility Agent and each other Lender, and take such action and/or refrain from taking such action as may be reasonably necessary, to ensure that the BpiFAE Insurance Policy and each Interest Stabilisation Agreement continues in full force and effect and shall indemnify and hold harmless each other Lender in the event that the BpiFAE Insurance Policy or such Interest Stabilisation Agreement (as the case may be) does not continue in full force and effect due to its gross negligence or willful default or due to a voluntary change in status which results in it no longer being eligible for CIRR interest stabilisation.
(d)    The ECA Agent shall, in conjunction with the Facility Agent:
(i)    make written requests to BpiFAE seeking a reimbursement of the BpiFAE Premium in the circumstances described in Section 11.13.1(c) promptly after the relevant cancellation or prepayment and (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE Insurance Policy) provide a copy of the request to the Borrower;
(ii)    use its reasonable endeavours to seek any reimbursement of the BpiFAE Premium to which the ECA Agent is entitled;

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(iii)    pay to the Borrower (in the same currency as the refund received from BpiFAE) the full amount of any reimbursement of the BpiFAE Premium that the ECA Agent receives from BpiFAE within two (2) Business Days of receipt with same day value; and
(iv)    relay the good faith concerns of the Borrower to BpiFAE regarding the amount of any reimbursement to which the ECA Agent is entitled, it being agreed that the ECA Agent’s obligation shall be no greater than simply to pass on to BpiFAE the Borrower’s concerns.
SECTION 11.14.    Law and Jurisdiction.
SECTION 11.14.1    Governing Law. This Agreement and any non-contractual obligations arising out of or in respect of this Agreement shall in all respects be governed by and interpreted in accordance with English Law.
SECTION 11.14.2    Jurisdiction. For the exclusive benefit of the Facility Agent and the Lenders, the parties to this Agreement irrevocably agree that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and that any proceedings may be brought in those courts. The Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Section, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum.
SECTION 11.14.3    Alternative Jurisdiction. Nothing contained in this Section shall limit the right of the Facility Agent or the Lenders to commence any proceedings against the Borrower in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
SECTION 11.14.4    Service of Process. Without prejudice to the right of the Facility Agent or the Lenders to use any other method of service permitted by law, the Borrower irrevocably agrees that any writ, notice, judgment or other legal process shall be sufficiently served on it if addressed to it and left at or sent by post to RCL Cruises Ltd., presently at Building 3, The Heights – Brooklands, Weybridge, Surrey, KT13 ONY, Attention: General Counsel, and in that event shall be conclusively deemed to have been served at the time of leaving or, if posted, at 9:00 am on the third Business Day after posting by prepaid first class registered post.
SECTION 11.15.    Confidentiality. Each of the Facility Agent and the Lenders agrees to maintain and to cause its Affiliates to maintain the confidentiality of all information provided to it by the Borrower or any Subsidiary of the Borrower, or by the Facility Agent on the Borrower’s or such Subsidiary’s behalf, under this Agreement, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement or in connection with other business now or hereafter existing or contemplated with the Borrower or any Subsidiary, except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by it or its Affiliates or their respective directors, officers, employees and agents, or (ii) was or becomes available on a non-confidential basis from a source other than the Borrower or any of its Subsidiaries so long as such source is not, to its knowledge, prohibited
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from disclosing such information by a legal, contractual or fiduciary obligation to the Borrower or any of its Affiliates; provided, however, that it may disclose such information (A) at the request or pursuant to any requirement of any self-regulatory body, governmental body, agency or official to which the Facility Agent, any Lender or any of their respective Affiliates is subject or in connection with an examination of the Facility Agent, such Lender or any of their respective Affiliates by any such authority or body, including without limitation the Republic of France and any French Authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable requirement of law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Facility Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder; (F) to the Facility Agent or such Lender’s independent auditors, counsel, and any other professional advisors of the Facility Agent or such Lender who are advised of the confidentiality of such information; (G) to any participant or assignee, provided that such Person agrees to keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (H) as to the Facility Agent, any Lender or their respective Affiliates, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Borrower or any Subsidiary is party with the Facility Agent, such Lender or such Affiliate; (I) to its Affiliates and its Affiliates’ directors, officers, employees, professional advisors and agents, provided that each such Affiliate, director, officer, employee, professional advisor or agent shall keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (J) to any other party to the Agreement and (K) to the French Authorities and any Person to whom information is required to be disclosed by the French Authorities. Each of the Facility Agent and the Lenders shall be responsible for any breach of this Section 11.15 by any of its Affiliates or any of its or its Affiliates’ directors, officers, employees, professional advisors and agents.
SECTION 11.16.    French Authority Requirements. The Borrower acknowledges that:
(a)    the Republic of France and any French Authority or any authorised representatives specified by these bodies shall be authorised at any time to inspect and make or demand copies of the records, accounts, documents and other deeds of any or all of the Lenders relating to this Agreement;
(b)    in the course of its activity as the Facility Agent, the Facility Agent may:
(i)    provide the Republic of France and any French Authority with information concerning the transactions to be handled by it under this Agreement; and
(ii)    disclose information concerning the subsidized transaction contemplated by this Agreement in the context of internationally agreed consultation/notification proceedings and statutory specifications, including information received from the Lenders relating to this Agreement.
SECTION 11.17.    Waiver of immunity. To the extent that the Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its assets, the Borrower hereby
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irrevocably waives such immunity in respect of its obligations under this Agreement and the other Loan Documents.
SECTION 11.18.    Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of a Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)    the effects of any Bail-in Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any Resolution Authority.

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IN WITNESS WHEREOF, the parties hereto have caused this Hull No. M34 Credit 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             
    Name:    
    Title:    
Address:     1050 Caribbean Way
    Miami, Florida 33132
Facsimile No.:    (305) 539-0562
Email:    agibson@rccl.com
    bstein@rccl.com
Attention:     Vice President, Treasurer
With a copy to:    General Counsel

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Citibank N.A., London Branch as Global Coordinator and a Lender

Commitment
6.0250000507% of the Maximum Loan Amount
By__________________________
Name:
Title:

Citigroup Centre
Canada Square
London E14 5LB
United Kingdom

Attention:    Wei-Fong Chan
        Kara Catt
        Romina Coates
        Antoine Paycha


Fax No:    +44 20 7986 4881
Tel No:    +44 20 7986 3036 /
        +44 20 7508 0344
        +44 20 7986 4824
        +44 20 7500 0907 /

E-mail:
weifong.chan@citi.com
kara.catt@citi.com
romina.coates@citi.com
antoine.paycha@citi.com


94

Banco Santander, S.A., Paris Branch as Lender

Commitment
4.3005743278% of the Maximum Loan Amount By__________________________
Name:
Title:
Lending Office:

374 rue Saint Honoré
75001 Paris
France

Operational address:

Ciudad Financiera
Avenida de Cantabria s/n
Edificio Encinar 2a planta
28600 Boadilla del Monte
Spain
Attention:    Elise Regnault
        Julián Arroyo
                     Angela Rabanal
        Ecaterina Mucuta
        Vanessa Berrio
        Ana Sanz Gómez

Fax No:    +34 91 257 1682
Tel No:    +34 912893722 /
              +1 212-297-2919
         +1 212-297-2942
             +33 1 53 53 70 46
        +34 91 289 10 28
        +34 91 289 17 90
 
E-mail:
elise.regnault@gruposantander.com
Julian.Arroyo@santander.us
arabanal@santander.us

Ecaterina.mucuta@gruposantander.com
vaberrio@gruposantander.com
anasanz@gruposantander.com
MiddleOfficeParis@gruposantander.com
94

BNP PARIBAS as Lender

Commitment
3.9306453776% of the Maximum Loan Amount By__________________________
Name:
Title:
Front Office to keep copied to all matters.
BNPP SA        
37 RUE DU MARCHE SAINT HONORE
75001    PARIS 
ACI : CHC03B1
Alexandre de VATHAIRE  / Mauricio GONZALEZ
alexandre.devathaire@bnpparibas.com
mauricio.gonzalez@us.bnpparibas.com
Tel : 00 331 42 98 00 29/00 1212 841 38 88

Middle Office: For Operational / Servicing matters
KHALID BOUITIDA / THIERRY ANEZO
MILLENAIRE 4
35, RUE DE LA GARE
75019 PARIS
ACI : CVA05A1
khalid.k.bouitida@bnpparibas.com
thierry.anezo@bnpparibas.com
Tel : 00 331 42 98 58 69 / 00 331 43 16 81 57

Back Office : For Standard Settlement Instruction authentication/call-back
STEVE LOUISOR / VALERIE DUMOULIN
MILLENAIRE 4
35, RUE DE LA GARE
75019 PARIS
ACI : CVA03A1
paris.cib.boci.ca.3@bnpparibas.com
valerie.dumoulin@bnpparibas.com
steve.louisor@bnpparibas.com

Tel  : 00 331 55 77 91 86 / 00 331 40 14 46 59


94

HSBC CONTINENTAL EUROPE as Lender

Commitment
3.9500000254% of the Maximum Loan Amount By__________________________
Name:
Title:
HSBC Continental Europe – Global Banking Agency Operations (GBAO) Transaction Manager Unit
103 avenue des Champs Elysées
75008 Paris
France

Attention:    
                        Florencia Thomas
        Alexandra Penda

Fax No:    +33 1 40 70 28 80
Tel No:    +33 1 40 70 73 81 /
        +33 1 41 02 67 50

Email:        florencia.thomas@hsbc.fr
    alexandra.penda@hsbc.fr

Copy to:

HSBC Continental Europe
103 avenue des Champs Elysées
75008 Paris
France

Attention:     Julie Bellais
        Celine Karsenty

Fax No:     +33 1 40 70 78 93
Tel No:     +33 1 40 70 28 59 /
        + 33 1 40 70 22 97
 
Email:        julie.bellais@hsbc.fr
        celine.karesenty@hsbc.fr


94

Société Générale as Lender

Commitment
9.9328352107% of the Maximum Loan Amount By__________________________
Name:
Title:
Société Générale Facility Office
29 Boulevard Haussmann 
75009 Paris
France

For operational/servicing matters:

Bouchra BOUMEZOUED / Tatiana BYCHKOVA
Société Générale 189, rue d’Aubervilliers 75886
PARIS CEDEX 18
OPER/FIN/CAF/DMT6

Phone: +33 1 57 29 13 12 / +33 1 58 98 43 05

Email: bouchra.boumezoued@sgcib.com
            tatiana.bychkova@sgcib.com
            par-oper-caf-dmt6@sgcib.com

For credit matters:

Francois ROLLAND / Mohamed MEROUANE
Société Générale 189, rue d’Aubervilliers 75886
PARIS CEDEX 18
GBSU/FTB/SMO/EXT

Phone: +33 1 58 98 17 78 / +33 1 58 98 92 06

Email: list.par-gbsu-ftb-smo-ext-aom@sgcib.com

94

SMBC Bank International plc as ECA Agent and
a Lender

Commitment
2.7360454039% of the Maximum Loan Amount By__________________________
Name:
Title:
1/3/5 rue Paul Cézanne, 75008 Paris, France

Attention:     Cedric Le Duigou
Guillaume Branco
Herve Billi
Claire Lucien
                   Helene Ly

Fax No:    +33 1 44 90 48 01
Tel No:
Cedric Le Duigou:    +33 1 44 90 48 83
Guillaume Branco:    +33 1 44 90 48 71
Herve Billi:    +33 1 44 90 48 48
Claire Lucien:    +33 1 44 90 48 49
Helene Ly:     +33 1 44 90 48 76


E-mail :
cedric_leduigou@fr.smbcgroup.com
guillaume_branco@fr.smbcgroup.com
herve_billi@fr.smbcgroup.com helene_ly@fr.smbcgroup.com
claire_lucien@fr.smbcgroup.com


94

SFIL as Lender

Commitment
69.1248996040% of the Maximum Loan Amount By__________________________
Name:
Title:
1-3, rue de Passeur de Boulogne – CS 80054
92861 Issy-les-Moulineaux Cedex 9
France

Contact Person
Loan Administration Department:
Direction du Crédit Export:
Pierre-Marie Debreuille / Anne Crépin
Direction des Opérations:
Dominique Brossard / Patrick Sick

Telephone:
Pierre-Marie Debreuille
+33 1 73 28 87 64
Anne Crépin        +33 1 73 28 88 59
Dominique Brossard    +33 1 73 28 91 93
Patrick Sick        +33 1 73 28 87 66

Email:
pierre-marie.debreuille@sfil.fr
anne.crepin@sfil.fr
dominique.brossard@sfil.fr
patrick.sick@sfil.fr
refinancements-export@sfil.fr creditexport_ops@sfil.fr

Fax:    + 33 1 73 28 85 04



94

Citibank Europe plc, UK Branch as Facility
Agent

By__________________________
Name:
Title:
5th Floor Citigroup Centre
Mail drop CGC2 05-65
25 Canada Square Canary Wharf
London E14 5LB
U.K.

Fax no.:    +44 20 7492 3980

Attention:    EMEA Loans Agency




94


Annex A

Framework



DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS


Please note that this is a non-binding document which remains subject to changes and additional requests. Decisions will be taken on a case-by-case basis.

Preamble

The Corona-pandemic continues to heavily affect the global tourism industry, including all cruise ship operators (“Companies”, a cruise operator the “Company” - including, if any, the guarantor and/or the holding company and/or the group). Almost all cruise ship operations are still suspended with various “no-sail orders” still in place.

As the cruise ship operations are still largely suspended, several cruise ship operators are expected to require an extension of the existing debt deferral initiative. The European ECAs (“ECAs”) intend to provide a coordinated response to these requests on a pan-European basis.

This document sets out the key principles (the “Terms and Conditions”) of a framework for a debt deferral extension of principal repayments and testing of financial covenants (the “Debt Deferral Extension” or “DDFE”) for already executed ECAs covered loan agreements (“Loan Agreement”) in connection with the financing of cruise vessels.

The terms of the Debt Deferral Extension are preliminary and informative in nature and shall not be deemed to be binding nor shall they represent any commitment by the ECAs in respect thereof. All Companies that are not already in formal debt restructuring proceedings can apply for the Debt Deferral Extension. ECAs are available to evaluate granting of the Debt Deferral Extension on a case by case basis subject to specific terms and conditions to be agreed upon with any of the Companies and nonetheless subject to approval by the respective ECAs competent bodies.

The European ECAs jointly are providing unilateral support to the cruise industry, for the benefit of the yards and the supply chain associated, by providing an extension to the initial temporary relief already given to the Companies, by deferring principal payments falling due from 1st April 2021 to 31st March 2022.

Such support is based on the firm mutual understanding that the Companies, taking advantage of the Debt Deferral Extension, sha l use their best endeavours fulfilling their contractual obligations under their existing shipbuilding contracts with the yard, i.e. do not unreasonably, unduly, and without consultation delay instalments and scheduled vessel deliveries and work in good faith with the yards to resolve any crisis-related construction delays. In particular, the Companies should avoid to cancel existing orders, either already effective and to become effective in the future.

Furthermore, the ECAs believe this initiative to be an important step to safeguard and strengthen the financial position of the Companies. Such support may enable the Companies in dealing with other existing creditors or bondholders in order to receive similar relief. In addition, it is our firm expectation that the Companies engage intensively with their respective shareholders and potential new shareholders to provide all possible support. It is the ECAs understanding that all relevant and involved stakeholders contribute to the efforts of stabilising the liquidity situation of the Companies during the current difficult market conditions in order to avoid formal debt restructuring proceedings. Such shareholders’ and debtholders support will be a major element in the evaluation and decision-making process.

All Companies have implemented liquidity initiatives by raising substantial liquidity throughout the crisis to face the halt of their operations and they will continue to do so if so requested. The ECAs are providing their support on the assumption that the Companies are still in an overall sound financial position and their business model is still well founded, so that as soon as the current travel restrictions will be discharged, the Companies will be able to resume “business as usual” and meet their future financial obligations.



1
    


DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS



1.    Generic Terms&Conditions of the Debt Deferral Extension

1.1    Deferred Payments on ECA-covered debt

1.1.1    Debt Deferral shall be extended to all principal payments under the original ECA loans and the Existing Deferral Tranche payable between 1st April 2021 and 31st March 2022 ("New Deferred Payments"). The New Deferred Payments shall be expected to be documented and administered as an additional Debt Deferral Tranche (“New Debt Deferral Tranche”).
1.1.2    The repayment schedules of the previously agreed deferred payments until 31.03.2021 (“Existing Deferral Tranche”) and the repayment schedule of the Original Loan will remain unchanged. The repayments under both repayment schedules which are due between 1st April 2021 and 31st March 2022 shall be covered by drawings under the New Debt Deferral Tranche.
1.1.3    The New Debt Deferral Tranche shall be repaid within 5 years starting from April 1st 2022, if commercially feasible on the same due dates as the originally scheduled payments, until 31.03.2027, irrespective of remaining tenor of each individual export financing and subject to 1.1.6 below.
1.1.4    Interest (floating or fixed; commitment fee on undisbursed amounts) and any scheduled ECA premium payments shall continue to be payable.
1.1.5    ECA cover remains effective and extended also on New Deferred Payments. ECAs coverage on any potential additional interest margin arising from the New Debt Deferral Tranche will be at discretion of each ECAs.
1.1.6    In the event that the payment of New Deferred Payments on the same due dates as the originally scheduled payments will result not feasible or advisable for the ECAs, repayment schedule of New Deferred Payments may be determined individually on the basis of a case-by- case examination by the ECA (for example the maturity date under the existing ECA financing (as amended by the Existing Debt Deferral) is less than the theoretical final maturity of the New Debt Deferral Tranche.

1.2    Suspension of Financial Covenant Testing

1.2.1    Testing of all agreed Financial Covenants (in disbursed and undisbursed facilities) shall continue to be suspended until 31.03.2022 ("Testing Suspension" with non-compliance does not trigger an Event of Default).
1.2.2    Over the next 18 months, the financing banks and ECAs shall have the right / option to trigger on their own discretion the negotiation to reset the individual financial covenants of a Company. The basic idea behind is that a corridor for the financial covenants shall be set for the coming years as soon the operational performance is in a ramp-up phase and the financial visibility does improve.
1.2.3    Although Testing Suspension remains in place, reasonable minimum liquidity requirement shall apply, if the Company has no liquidity covenant in place, minimum liquidity covenants for Debt Deferral Extension shall be introduced (however, aligned with any relevant liquidity covenants included in other financings)

1.3    ECA Premium, Interest and Fees:

1.3.1    Additional upfront/one-off ECA premium on New Debt Deferral Tranche Payments ("Additional ECA Premium") shall apply.
1.3.2    Additional ECA Premium shall be calculated by each ECAs based on its evaluation of the Debt

2
    


DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS

Holiday request.
1.3.3    Additional ECA Premium shall be due and payable at signing of the Debt Deferral Extension. The Additional ECA Premium is not refundable.
1.3.4    The Company shall bear any incurred adjustment on funding cost (CIRR and/or bank funding) for New Debt Deferral Tranche (for New Deferred Payments).
1.3.5    The Company shall agree on reasonable upfront and coordination fees, due and payable at signing of Debt Deferral Extension. A fee of the same amount than the one payable to the lenders may also be payable to the ECA, if the ECA so requests.
1.3.6    The Company shall bear any incurred legal and administrative cost to implement New Deferred Payments including but not limited to CIRR agreements.
1.3.7    In case there are several financings supported by different ECAs, the Company shall apply for the Debt Deferral Extension to all the ECAs. However, if the consent of the ECA lenders for one or more of these ECA financings is not obtained (due to the refusal of the ECA lenders of said financing), that should not prevent the Debt Deferral Extension to be implemented for the other ECA financings

2.    Undertakings
2.1    All conditions and undertakings of the Existing Debt Deferral shall remain in place, especially:
(i)    dividend restriction,
(ii)    mandatory redemption events,
(iii)    information covenant and monitoring
(iv)    specific ECA’s requirements (including, but not limited to, environmental covenant).

2.2    In particular, additional covenants will be added in the Debt Deferral Extension including but not limited to:

(i)    Any dividend payment, any share buy-back program or any other distribution or payment to share capital or shareholders (including repayment of shareholder loans), and/or
(ii)    new financing granted by the Company [(including inter-company loans)], and/or
(iii)    any non-arm length disposal of asset and/or
(iv)    any additional security in favour of existing debts (unless the ECA lenders benefit from this new security on a pari passu basis), and/or
(v)    any new regular debt or equity issue (such as bond or new equity emission) or other form of indebtedness by the Company
(vi)    any debt deferral or covenant waivers of existing debts, or any new debt raising intended to reimburse existing debt that benefit from additional securities or more favourable terms on existing security packages (unless they are granted to ECA lender on a pari passu basis),

shall trigger mandatory prepayment, to be made through an hard prepayment in a lump sum of any outstanding amount under the New Debt Deferral Tranche and immediate cessation of Testing Suspension, in any case subject to the provisions below.

2.3    Utilisation of the New Tranche shall be subject to proof of evidence of sufficient crisis-related liquidity measures by the Company, including equity, which shall be documented in the application process based on the Information Package (see paragraph 3.4. below).

2.4    During and until the end of the New Debt Deferral Tranche, the mandatory prepayment provision and the cessation of the Testing Suspension will not apply in relation to:

(i)    debt issuances by the Company due to financing of any scheduled ship building contract instalments, including, but not limited to, final instalment at delivery;
(ii)    (i) crisis and recovery related debt provided either (a) on unsecured basis and in accordance within the limitation provided under the documentation or (b) on secured basis if so requested
3
    


DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS

by a State supported arrangement and in any case within the limitation provided under the documentation or
(ii)    equity issuances by the Company
in both cases (i) and (ii) made until 31 December 2021;

(iii)    after 31 December 2021, crisis and recovery related debt or equity issuances by the Company made with the prior written consent of the ECA;
(iv)    extension (or renewal of) revolving credit facilities, with the prior consent of the ECA if any additional security shall be granted on this occasion.

2.5    Additional redemption mechanism

ECAs shall have the right to request mandatory redemption of Existing and New Deferred Payments if the Company wishes to redeem other commercial lenders and/or bondholders early (pari passu redemption). For the avoidance of doubt, the refinancing of debt or mandatory prepayments necessary to avoid an event of default ECAs will not request a pari passu redemption. Voluntary prepayment and/or cash sweep shall trigger a mandatory prepayment and drawstop of the Existing and New Debt Deferral Tranches, unless those are applied across the ECAS facilities under the New Debt Deferral Tranches.

2.6    Additional security

1.    The Company shall grant additional security or credit enhancements to ECA lenders (and consequently to the ECA) to be negotiated in good faith, if so requested by the ECAS. Without prejudice to paragraph 3.6(b) below with respect to new ECA financings, it is the ECAs firm understanding that additional securities will have to be provided on a pari passu basis to all the involved ECAs for any of the existing loan agreements.
2.    Additional Security may be requested by each and every ECA at their own sole discretion, in case such ECA is requested by the Company to support a new ECA financing in relation to any scheduled or new ship building contract, including the financing of new change orders and/or owner’s supplies.

2.7    Early Termination of New and Existing Debt Deferrals

If the Company and/or the obligors enters all-creditor and/or formal debt restructuring proceedings including but not limited to US Chapter 11 proceedings, all Deferred Payments of the Existing and the New Debt Deferral Tranche shall be void [or not effective] and the Company shall reimburse the ECAs financings according to original repayment schedule. For the avoidance of doubt, all sums deferred shall be immediately repaid and undrawn amounts under the Existing and New Debt Deferral Tranches shall be subject of a draw stop.

3.    Procedure for Debt Deferral Extension application

3.1    Each cruise operator ("Company" or the “Borrower” or the “Obligor”) may apply through its ECA- Agent bank, for the Debt Deferral Extension with each ECA for all its disbursed and undisbursed ECA-backed existing export financings. In one application, several financings can be bundled. Each Company shall apply Debt Deferral Extension also with CIRR Mandatory for all its disbursed ECA-backed CIRR export financings in an application via the respective CIRR-Agent bank.

3.2    The Facility Agent in coordination with ECA- and CIRR-Agent shall coordinate Lenders' consent immediately after Company launched application for Debt Deferral Extension. For the avoidance of doubt, ECA- and CIRR-approval shall be decided in a timely fashion based on prior ECA

4
    


DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS

coordination.

3.3    Similar to Debt Deferral Application in Q2 2020 Company shall provide an updated information package as may be required by the relevant ECA based on its standardized template as described in the Annex.

3.4    The Borrower/Company/Obligor shall provide the following information:
(i)    Treatment of other (new) creditors during Debt Holiday 1.0
(ii)    Overview of already collected crisis liquidity
(iii)    Overview of already concluded and further planned equity measures

(iv)    Overview of any debt deferral already negotiated/agreed with other creditors as of the date of application for the Debt Deferral Extension and description of the steps which the Borrower/Company/Obligor intends to take in order to agree any additional debt deferral with other creditors, alongside the Debt Deferral Extension.
(v)    [Detailed information in relation to any security or additional security granted in favour of any class of creditors (lenders/financiers, bondholders or other relevant creditors) which has been created or agreed as of the date of application for the Debt Deferral Extension]
(vi)    [Exhaustive and detailed description of any financial covenant which has been included within the terms and conditions of any debt issuance carried out within [1 February 2020] and the date of application for the Debt Deferral Extension and/or included in financing agreement in place as of the same date]

(vii)    Detailed information of future repayment obligations over the repayment tenor of the Debt Deferral Extension.
(viii)    Presentation of previous and future measures to secure the situation of shipyards and their order books
(ix)    Status of the Application with other ECAs
(x)    Rough estimate of the Company’s economic contribution to the ECAs’ respective economic systems.
(xi)    Detailed cash flow projections (Management Base Case and Management Stress Case) to illustrate the positive impact of the Debt Deferral Extension (at least 5 years projection) plus additional stress case scenarios, if requested by the respective ECAs, including cases with no substantial and cash generating operations prior to 01.06.2021 and 01.10.2021. Projections shall demonstrate the ability of the Applicant to meet its payment obligations towards its creditors until the end of the New Debt Deferral Tranche repayment period.
(xii)    Agreed repayment schedule of New Debt Deferral Tranche for all affected financings.

3.5    The Company and any of the Insured Banks shall also provide information regarding their commercial exposure and the arrangements taken (or under negotiation) towards this Applicant’s commercial exposure.

3.6    The Application should also cover:
(a)    a declaration of the Company to use its best efforts to:
1.    enter into similar agreements or arrangements with other class of its creditors; and to
2.    finalize agreement which won’t put in jeopardy the ECAS position or the shipyard and
(b)    a confirmation that the application is sent to all the ECAs involved at once.
5
    


DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS

Please refer to the Annex for the comprehensive list of information and monitoring process to be implemented.























6
    

Annex B
Debt Deferral Extension Regular Monitoring Requirements

Debt Deferral Extension - Regular Monitoring Requirements
Monitoring Period:
-    Starting point: approval
-    End: the expiry of the Financial Covenant Waiver Period, whereby the list of documents and frequency shall be reviewed and adjusted annually by the Facility Agent.
Rhythm Description
1. monthly
Reporting of the:
1.    Total Free Liquidity Position – def.: free cash + free undrawn credit lines;
2.    Free Net Liquidity Position – Total Free Liquidity Position minus all planned debt repayments
(bank loan, commercial papers, bonds) which are due within the following 6 months.;
3.    In case the Free Net Liquidity Position does decease to 6x the average of the monthly operational cash burn rate the ECA can decide on its own discretion whether a shorter reporting rhythm shall be implemented (e.g. weekly).;
4.    Description of additional measures implemented to increase the liquidity position (debt, mezzanine and equity measures) / Whereby details of the respective terms and conditions shall be included (e.g. securities, ranking), for easy reference an ongoing list would be preferred with (a) measures taken, (b) additional measures finalized in the respective month and (c) additional measures planned.;
5.    Description of of additional cost cutting measures implemented to reduce the outflow of liquidity (OPEX, CAPEX, Debt Deferrals etc.);
6.    Repayment or refinancing of existing debt
 
    

2. monthly
Cash Flow Projection of the cruise line on a monthly basis
The Projection means cash flow statements in excel format, complete with formulas, shall cover the following period:
1.    Actual figures: The current financial year (whereby at least 1 quarter with actual historical figures have to be included);
2.    Projection: At least the following 24 months starting from the respective current month
(including shut down period and recovery phase)
Cash Flow Projection showing:
1.    operating cash flow including and separately listed Cruise-Revenues (including but not limited to occupancy rate, ticket prices, capacity of the overall fleet, capacity of fleet in operation), Cruise-OPEX, other COGS, net customer deposits collection (providing details of deposit refund separately), working capital and SG&A;
2.    cash flow from investing activities (separately: detailing capex in vessels, general capex and disposals / In addition for information purposes the newbuilding capex which will be paid out of equity.),
3.    cash flow from financing activities (detailing proceeds from equity, proceeds from debt separated by type of funding and ECA facilities, debt repayments separately), etc.
4.    Interest expenses
Such Cash Flow Projection shall be accompanied by a descriptive Note of Assumptions which does include comments on:
1. Changes:
(i)    The main changes to the underlying assumptions with respect to revenue / cash collections and disbursement of operational costs and SG&A,
(ii)    The main changes to the underlying assumptions with respect to Debt Deferrals (with the ECA backed transactions or other class of creditors)

(iii) The main changes with respect to Major Capex (and such Equity payments in relation to Major Capex)
And in each case whether those changes are due to timing issues or more fundamental changes compared to the initial Test Scheme Template for the Debt Deferral Extension (if not previously disclosed), or the previous Liquidity Forecast.
2. Mitigants or additional liquidity measure that are incorporated in the Liquidity Forecast, or planned but not yet incorporated in the Liquidity Forecast.
 
3. monthly Testing of the applicable Minimum Liquidity Covenant according to the amended loan documentation
    

4. monthly
1.    Cash Burn Rate
2.    Cash Burn Rate adjusted to net deposits collection
3.    Net Liquidity position to Cash Burn rate
Def. Cash Burn rate means operating costs plus debt service plus capital expenditure (net of financing) Def. Cash Burn rate adjusted means operating costs plus debt service plus capital expenditure (net of financing) plus net deposits collection.
To be reported as long as the company achieves a positive (adj.) EBITDA after interest costs in two consecutive months
5. monthly
Booking Curve - Average ticket price and occupancy for the season 2021 and season 2022 including a comparison of both parameters at the same point in time for bookings in 2019 for the season 2020
Format tbd with the ECA Agent / Figures to be provided in table / split by quarter mandatory
6. monthly
Status of the fleet on a per vessel basis: Active vessels (+ occupancy level) / Vessels in layup / Vessels classified for sale
Fleet wide average of occupancy (incl. active and idle vessels)
7. monthly
Confirmation that no dividends have been declared / paid within the current month.
8. monthly
Development of the customer deposits:
1.    For cancelled cruises with starting dates in the past: Percentage of customers which requested a refund and percentage of those who re-booked or accepted a voucher.
2.    Overview of the amount of deposits which have been collected in connection with cruises in the next 4 quarters (split by quarter).
3.    Customer Deposits for cruises starting within the next 3 months
4.    Amount of collected deposits which are at risk to be refunded, based on the company’s own assumption of how many passengers of future cancelled cruises might choose a refund instead of a re-booking or a voucher.
 
9. monthly
Other Creditors and Debtors:
1.    Please state clearly whenever terms and conditions (amount, interest, tenor, maturity schedule and securities) of existing credit facilities (incl. other debt holiday agreements) have been amended which fall into the same class as the ECAs or other classes.
2.    How are generally unsecured and secured financings treated?
3.    How do the debtors (like credit card companies) currently act? Do creditors withhold payments?
4.    Other Creditors and Debtors: What is the company asking from the other creditors (e.g. Bondholder, LeaseCos, FactorCos etc.) and what is their response? Do the respective documentation include cross default clauses?
10
bi-
monthly
Update about the changes of signed building contracts
The ECA shall be updated about the company`s current plans to amend any building contract or about any upcoming negotiations with the national yard.
11
quarterly
Unaudited financial statements or management accounts (incl. P&L (incl. EBITDA), balance sheet and cash flow statement)
12
quarterly
Company shall provide the calculation of the financial covenants which currently are waived.
    

Annex C
Replacement covenants with effect from the Guarantee Release Date



    



Exhibit N
Replacement covenants with effect from the Guarantee Release Date


It is acknowledged and agreed, with effect from the Guarantee Release Date, this Agreement shall be amended as follows:

“incur” means to create, incur, assume, guarantee or otherwise become directly or indirectly liable and “incurred” or “incurrence” shall have a correlative meaning.

“Inherited Indebtedness” means any Indebtedness (other than any Indebtedness that would, following the acquisition or creation of the relevant Subsidiary, become Permitted Principal Subsidiary Indebtedness or Permitted Non-Principal Subsidiary Indebtedness) of any corporation that becomes a Subsidiary of the Borrower after the Guarantee Release 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 Indebtedness is in existence at the time such corporation becomes a Subsidiary of the Borrower and was not incurred by the Borrower or any of its Subsidiaries in anticipation thereof.

“Inherited Lien” means any Lien (other than a Lien that would, following the acquisition or creation of the relevant Subsidiary, become a Permitted Lien) in respect of any Inherited Indebtedness on any asset of any corporation that becomes a Subsidiary of the Borrower after the Guarantee Release 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.

“Non-Principal Subsidiary” means a Subsidiary other than a Principal Subsidiary.

“Permitted Principal Subsidiary Indebtedness” means:

a.    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower; and
b.    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes.
“Permitted Liens” means:

a.    Liens securing Government-related Obligations;
1

b.    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;
c.    Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue by more than 60 days or being diligently contested in good faith by appropriate proceedings;
d.    Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance or other forms of governmental insurance or benefits;
e.    Liens for current crew's wages and salvage;
f.    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;
g.    Liens on Vessels that:
(i)    secure obligations covered (or reasonably expected to be covered) by insurance;
(ii)    were incurred in the course of or incidental to trading such Vessel in connection with repairs or other work to such Vessel; or
(iii)    were incurred in connection with work to such Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;
provided that, in each case described in this clause (g), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;
h.    normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers' liens, rights of set-off or similar rights in favour of banks or other depository institutions;
i.    Liens in respect of rights of set-off, recoupment and holdback in favour of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business;
j.    Liens on cash or Cash Equivalents or marketable securities securing:
(i)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; or
2



(ii)    letters of credit that support such obligations;
k.    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
l.    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
m.    licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
n.    Liens on any property of Silversea identified in Section 2 of Exhibit F hereto,


“Permitted Non-Principal Subsidiary Indebtedness” means:

a.    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower;
b.    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; and
c.    other Indebtedness other than Indebtedness for borrowed money (it being agreed for this purpose that any Group Member Guarantee granted in connection with Indebtedness for borrowed money shall be considered to be Indebtedness for borrowed money).



3




1.    Sections 7.2.2 and 7.2.3 shall be deleted in their entirety and replaced with the following (and all other provisions and clause references shall be construed accordingly):
SECTION 7.2.2    Subsidiary Indebtedness and Liens.
(a)    With effect from the Guarantee Release Date and except to the extent permitted by Section 7.2.2(b) below:
(i)    the Borrower will not permit:
A.    any of its Principal Subsidiaries to incur any Indebtedness other than Permitted Principal Subsidiary Indebtedness; and
B.    any of its Non-Principal Subsidiaries to incur any Indebtedness other than Permitted Non-Principal Subsidiary Indebtedness; and
(ii)     the Borrower (having regard, in the case of any ECA Financed Vessel, to Section 7.2.10) will not, and will not permit any of its Subsidiaries to, permit to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired other than Permitted Liens.
(b)    Section 7.2.2(a) shall not, however, prohibit any Indebtedness or Lien provided that (but again having regard, in the case of any ECA Financed Vessel, to Section 7.2.10) immediately following the incurrence (including any Group Member Guarantees) of the Indebtedness or Lien (as applicable):
(i)    the sum of the aggregate principal amount (without duplication) of (x) Indebtedness incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness), (y) Indebtedness incurred by Non-Principal Subsidiaries (excluding Permitted Non-Principal Subsidiary Indebtedness) and (z) the Indebtedness secured by Liens (other than Permitted Liens) granted by any Group Member does not exceed 20.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
(ii)    in the event the Senior Debt Rating of the Borrower is at Investment Grade as given by either Moody’s and S&P (determined at the time of the incurrence of the Indebtedness or Lien), the sum of the aggregate principal amount (without duplication) of (x) Indebtedness incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness) and (y) the Indebtedness secured by Liens (excluding Permitted Liens) granted by any Group Member does not exceed 10.0% of the total assets of the Borrower and its Subsidiaries taken as
4



a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
(iii)     in the event the Senior Debt Rating of the Borrower is below Investment Grade as given by both Moody’s and S&P (determined at the time of creation of the Lien or the granting of a Group Member Guarantee (as applicable)):
A.    the aggregate principal amount of Indebtedness secured by first priority Liens (excluding Permitted Liens) granted by any Group Member does not exceed 5% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
B.    the aggregate principal amount of Indebtedness secured by second (or lower) priority Liens (excluding Permitted Liens) granted by any Group Member does not exceed 5% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; and
C.    the sum of the aggregate principal amount (without duplication) of (x) Indebtedness (including any Group Member Guarantees) incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness) and (y) Indebtedness secured by Liens (excluding Permitted Liens) granted by any Group Member pursuant to (iii)(A) and (B) above does not exceed 10.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter,
provided that if, following the Guarantee Release Date, the Borrower enters into a transaction which results in the existence of any Inherited Lien or Inherited Indebtedness, and solely as a result of that Inherited Lien (and the related Inherited Indebtedness secured by that Inherited Lien) or Inherited Indebtedness, the thresholds referred to in this paragraph (b) are exceeded, whilst no breach of this clause shall be deemed to have occurred at the time of such transaction, no further Indebtedness or Liens of the type referred to in this paragraph (b) shall be permitted to be incurred or, as the case may, permitted to exist until such time as the Borrower is in compliance with the thresholds referred to above (and taking into account for such purpose any unsecured Inherited Indebtedness or Inherited Indebtedness secured by any Inherited Lien).

2.    Section 7.2.3 shall be deleted in its entirety and replaced with “Intentionally Omitted”.

3.    A new Section 7.2.10 shall be inserted as follows:
5




SECTION 7.2.10    Negative Pledge Over ECA Financed Vessels.
For the purposes of this Section 7.2.10:
“repaid” means scheduled repayments or voluntary or mandatory prepayment and not repayments arising following the acceleration of the relevant ECA Financing after the occurrence of an Event of Default; and
“credit support” means a Lien over any ECA Financed Vessel granted by any Group Member or a Group Member Guarantee from a Group Member (other than the Borrower) that owns (directly or indirectly) any ECA Financed Vessel.
In connection with the granting of any Lien or Group Member Guarantee pursuant to Section 7.2.2(b) above, no Group Member shall use any ECA Financed Vessel as credit support in respect of any Indebtedness except:
(i)    if more than 75.0% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel has been repaid by the relevant Group Member, that Group Member shall be entitled to grant credit support over or in respect of that ECA Financed Vessel on the basis, and in compliance with the terms of, Section 7.2.2(b); and
(ii)    if an amount equal to or higher than 15.0% but less than or equal to 75% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel has been repaid by the relevant Group Member (determined at the time the relevant credit support is provided), the relevant Group Member shall be entitled to provide such credit support over that ECA Financed Vessel on the basis of, and subject to the compliance with, the terms of, Section 7.2.2(b), provided that the amount of Indebtedness secured or supported (as applicable) by that credit support shall not exceed an amount equal to FV x (A / B) where:
FV = the fair value of that ECA Financed Vessel at the time of the provision of that credit support (as evidenced by the information to be provided pursuant to sub-paragraph (v) below);
A = the aggregate principal amount of Indebtedness incurred under the ECA Financing in respect of that ECA Financed Vessel which has been repaid by the relevant Group Member at the time the credit support is provided; and
B = the amount of Indebtedness originally incurred by the relevant Group Member under the ECA Financing in respect of that ECA Financed Vessel,
6



it being acknowledged and agreed that:
(iii)    where the relevant credit support being provided in accordance with this Section 7.2.10 is a Group Member Guarantee from a Group Member that owns (directly or indirectly) one or more ECA Financed Vessels but does not own (directly or indirectly) any other Vessels, the amount of Indebtedness that can be supported by such Group Member Guarantee shall be equal to the aggregate amount of Indebtedness that would be permitted to be secured under this Section 7.2.10 if, instead of a Group Member Guarantee, each relevant Principal Subsidiary owning each relevant ECA Financed Vessel was to provide a Lien as credit support in respect of that Indebtedness;
(iv)     where the relevant credit support being provided in accordance with this Section 7.2.10 is a Group Member Guarantee from a Group Member that owns (directly or indirectly) one or more ECA Financed Vessels and other Vessels, the restrictions contained in this Section 7.2.10 as to the amount of the Indebtedness that can be supported by such credit support must be preserved at all times and, not later than five Business Days after the date upon which that Group Member grants the relevant Group Member Guarantee, the Borrower shall notify the Facility Agent in writing of such event and shall provide any information as may be reasonably requested by the Facility Agent to verify that the requirements of this Section 7.2.10 have been complied with following the provision of such Group Member Guarantee; and
(v)    not later than five Business Days after the date upon which a Group Member provides any credit support, the Borrower shall provide the Facility Agent with evidence as to its compliance with this Section 7.2.10, which evidence shall include all required calculations and other information required by the Facility Agent (acting reasonably) to determine such compliance; and
(vi)    no Group Member shall be entitled to use any ECA Financed Vessel as credit support in the manner contemplated by this Section 7.2.10:
(A)    until such time as the relevant Group Member has repaid at least 15.0% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel; and/or
(B)    at any time in which a Default has occurred and is continuing.


7




SIGNATORIES
Amendment Agreement in respect of Hull M34
Existing Borrower
SIGNED by Jacobus Pietersen, Director
for and on behalf of
HOUATORRIS FINANCE LIMITED
)
)
) 		/s/ Jacobus Pietersen
)
New Borrower
SIGNED by Antje M. Gibson, VP & Treasurer
for and on behalf of
ROYAL CARIBBEAN CRUISES LTD.
)
)
) 		/s/ Antje M. Gibson
)
Facility Agent
SIGNED by Claire Crawford
for and on behalf of
CITIBANK EUROPE PLC, UK BRANCH
)
)
) 		/s/ Claire Crawford
)
Security Trustee
SIGNED by Cristina Volc, Attorney
for and on behalf of
CITICORP TRUSTEE COMPANY LIMITED
)
)
)
/s/ Cristina Volc
)
Global Coordinator
SIGNED by David Graham, Director
for and on behalf of
CITIBANK N.A., LONDON BRANCH
)
)
) 		/s/ David Graham
)
The ECA Agent
SIGNED by Hervé Billi
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
) 		/s/ Hervé Billi
)
French Coordinating Bank
SIGNED by Julie Bellais / Guy Woelfel
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ Guy Woelfel

The Lenders
SIGNED by David Graham, Director
for and on behalf of
CITIBANK N.A., LONDON BRANCH
)
)
) 		/s/ David Graham
)
SIGNED by Julie Bellais / Guy Woelfe
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ Guy Woelfel
SIGNED by Alexandre de Vathaire, Export Finance-Origination EMEA-Managing Director France & UK / Georges Curey, Export Finance, Head of Transaction and CPM Teams EMEA
for and on behalf of
BNP PARIBAS
)
)
)
)
)
)
/s/ Alexandre de Vathaire
) /s/ Georges Curey
SIGNED by Alpa Shah / Masao Yokoyama
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
) 		/s/ Alpa Shah
) /s/ Masao Yokoyama
SIGNED by Valerie Mace
for and on behalf of
SOCIÉTÉ GÉNÉRALE
)
)
) 		/s/ Valerie Mace
)
SIGNED by PM Debreuille, Dírecteur Crédit Export / Emilie Boissier, Direction Crédit Export
for and on behalf of
SFIL
)
)
)
)
/s/ PM Debreuille
) /s/ Emilie Boissier
SIGNED by Caroline Pantaleao / Pierre Roserot de Melin
for and on behalf of
BANCO SANTANDER S.A., PARIS BRANCH
)
)
)
)
/s/ Caroline Pantaleao
) /s/ Pierre Roserot de Melin

    

The Mandated Lead Arrangers
SIGNED by David Graham, Director
for and on behalf of
CITIBANK N.A., LONDON BRANCH
)
)
) 		/s/ David Graham
)
SIGNED by Julie Bellais / Guy Woelfel
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ Guy Woelfel
SIGNED by Caroline Pantaleao / Pierre Roserot de Melin
for and on behalf of
BANCO SANTANDER S.A., PARIS BRANCH
)
)
)
)
/s/ Caroline Pantaleao
) /s/ Pierre Roserot de Melin
SIGNED by Alexandre de Vathaire, Export Finance-Origination EMEA-Managing Director France & UK / Georges Curey, Export Finance, Head of Transaction and CPM Teams EMEA
for and on behalf of
BNP PARIBAS
)
)
)
)
)
)
/s/ Alexandre de Vathaire
) /s/ Georges Curey
SIGNED by Alpa Shah / Masao Yokoyama
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
) 		/s/ Alpa Shah
) /s/ Masao Yokoyama
SIGNED by Valerie Mace
for and on behalf of
SOCIÉTÉ GÉNÉRALE
)
)
) 		/s/ Valerie Mace
)


    

Exhibit 10.4
Dated 12 July 2021
HIBISYEU FINANCE LIMITED
as Existing Borrower
ROYAL CARIBBEAN CRUISES LTD.
as New Borrower
CITIBANK EUROPE PLC, UK BRANCH
as Facility Agent
CITICORP TRUSTEE COMPANY LIMITED
as Security Trustee
CITIBANK N.A., LONDON BRANCH
as Global Coordinator
HSBC CONTINENTAL EUROPE
as French Coordinating Bank
SMBC BANK INTERNATIONAL PLC
as ECA Agent
CITIBANK N.A., LONDON BRANCH, BANCO SANTANDER S.A., PARIS BRANCH, BNP PARIBAS, HSBC CONTINENTAL EUROPE , SOCIETE GENERALE
and
SMBC BANK INTERNATIONAL PLC
as Mandated Lead Arrangers
and
THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1
as Lenders
Amendment Agreement in connection with
the Credit Agreement in respect of
Hull No. C34 at Chantiers de l’Atlantique S.A.


Contents
Clause    Page
1    Interpretation and definitions
2
2    Amendment of the Novation Agreement
3
3    Conditions of effectiveness
3
4    Representations and Warranties
5
5    Incorporation of Terms
6
6    Fees, Costs and Expenses
6
7    Counterparts
6
8    Governing Law
7
Schedule 1 Lenders
8
Schedule 2 Form of Amendment Effective Date confirmation – Hull C34
9
Schedule 3 Form of Amended and Restated Novated Credit Agreement
10
Annex A Framework
11
Annex B Debt Deferral Extension Regular Monitoring Requirements
12
Annex C Replacement covenants with effect from the Guarantee Release Date
16



THIS AMENDMENT AGREEMENT (this Amendment) is dated 12 July 2021 and made BETWEEN:
(1)
HIBISYEU FINANCE LIMITED as transferor (the Existing Borrower);
(2)
ROYAL CARIBBEAN CRUISES LTD. as transferee (the New Borrower);
(3)
CITIBANK EUROPE PLC, UK BRANCH as facility agent for itself and the other Finance Parties (the Facility Agent);
(4)
CITICORP TRUSTEE COMPANY LIMITED as security trustee for the other Finance Parties (the Security Trustee);
(5)
CITIBANK N.A. LONDON BRANCH as global coordinator (the Global Coordinator);
(6)
HSBC CONTINENTAL EUROPE (previously known as HSBC France) as French coordinating bank (the French Coordinating Bank);
(7)
SMBC BANK INTERNATIONAL PLC (previously known as Sumitomo Mitsui Banking Corporation Europe limited, Paris Branch) as ECA agent (the ECA Agent);
(8)
CITIBANK N.A., LONDON BRANCH, HSBC CONTINENTAL EUROPE (previously known as HSBC France), BANCO SANTANDER S.A., PARIS BRANCH, BNP PARIBAS, SOCIÉTÉ GÉNÉRALE and SMBC BANK INTERNATIONAL PLC as Mandated Lead Arrangers; and
(9)
THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders.
WHEREAS:
(A)    Reference is made to the facility agreement dated 24 July 2017 (as supplemented, amended and restated from time to time, the Facility Agreement) and made between (1) the Existing Borrower as borrower, (2) the banks and financial institutions named therein as original lenders, (3) the Mandated Lead Arrangers as mandated lead arrangers, (4) the Facility Agent as facility agent, (5) the Security Trustee as security trustee (6) the Global Coordinator as global coordinator, (7) the French Coordinating Bank as French coordinating bank and (8) the ECA Agent as ECA agent, pursuant to which the Lenders have agreed to make available a loan of up to €971,961,680 to the Existing Borrower in connection with the purchase by the Existing Borrower of the Receivable from the Seller pursuant to the Receivable Purchase Agreement.
(B)    This Amendment is supplemental to the novation agreement dated 24 July 2017 (as supplemented, amended and restated from time to time, the Novation Agreement) in respect of the financing of the acquisition of the Vessel pursuant to the Facility Agreement and made between, amongst others, (1) the Existing Borrower as the existing borrower, (2) the New Borrower as the new borrower, (3) the banks and financial institutions named therein as original lenders, (4) the Mandated Lead Arrangers as mandated lead arrangers, (5) the Facility Agent as facility agent, (6) the Security Trustee as security trustee, (7) the Global Coordinator as global coordinator, (8) the French Coordinating Bank as French coordinating bank and (9) SMBC Bank International plc as ECA agent.
(C)    The New Borrower has requested that the form of Novated Credit Agreement scheduled to the Novation Agreement (as such Novated Credit Agreement was previously amended and restated pursuant to the Third Novation Agreement Supplement) be amended and restated on the basis set out in this Amendment in order to reflect the Debt Deferral Extension Framework published by certain Export Credit Agencies (including BpiFAE) (the Framework).
    Page 1

(D)    The Parties have agreed to amend the Novation Agreement, and amend and restate the form of Novated Credit Agreement attached to the Novation Agreement, on the basis set out in this Amendment.
NOW IT IS AGREED as follows:
1    Interpretation and definitions
1.1    Definitions in the Facility Agreement and the Novation Agreement
(a)    Unless the context otherwise requires or unless otherwise defined in this Amendment, words and expressions defined in the Novation Agreement or the Facility Agreement shall have the same meanings when used in this Amendment (including in the recitals).
(b)    The principles of construction set out in clause 1.3 of the Novation Agreement shall have effect as if set out in this Amendment.
1.2    Definitions
In this Amendment:
Amendment Effective Date means the date specified as such in the certificate signed by the Facility Agent in accordance with clause 3.2.
ECA Financing has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Fee Letter means any letter between any Finance Party and the New Borrower setting out the fees payable in connection with this Amendment.
Financial Covenant Waiver Period has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Framework Information Package means the general test scheme/information package in connection with the "Debt Deferral Extension" application submitted by the New Borrower in order to obtain the benefit of the measures provided for in the Framework for the purpose of this Amendment and certain of the New Borrower’s obligations to be assumed under the replacement Novated Credit Agreement.
Loan Documents has the meaning given to such term in the form of the replacement Novated Credit Agreement set out in Schedule 3.
Party means each of the parties to this Amendment.
Third Novation Agreement Supplement means the supplemental agreement to the Novation Agreement dated 13 November 2020, entered into between the parties to the Novation Agreement and pursuant to which the Novation Agreement was amended in order to, amongst other things, replace the form of Novated Credit Agreement attached thereto.
1.3    Third party rights
Other than BpiFAE in respect of the rights of BpiFAE under the Finance Document and the Loan Documents, unless expressly provided to the contrary in a Finance Document or a Loan Document, no term of this Amendment is enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.

    Page 2

1.4    Designation
Each of the Parties designates this Amendment as a Loan Document for the purposes of the replacement Novated Credit Agreement and a Finance Document for the purposes of the Facility Agreement.
1.5    Security Trustee
Each of the parties acknowledges that the Security Trustee is entering into this Amendment on the irrevocable and unconditional instructions of the Facility Agent and the Security Trustee shall have all of the rights, powers and protections conferred on it under the Finance Documents hereunder.
2    Amendment of the Novation Agreement
2.1    In consideration of the mutual covenants in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree that, subject to the satisfaction of the conditions precedent set forth in clause 3:
(a)    the form of the Novated Credit Agreement (but without all its Exhibits which shall, unless otherwise amended and restated pursuant to paragraph (b) below, remain in the same form and continue to form part of the Novated Credit Agreement) set out in Schedule 3 of the Novation Agreement shall be (and it is hereby) amended and restated so as to read in accordance with the form of the amended and restated Novated Credit Agreement set out in Schedule 3; and
(b)    Annex A to Annex C hereto shall be attached to the form of the Novated Credit Agreement as new Exhibit L to Exhibit N thereto.
2.2    It is acknowledged and agreed that as a result of the amendment and restatement of the Novated Credit Agreement pursuant to this Amendment, clause 2.1(b) of the Third Novation Agreement Supplement shall no longer apply and accordingly the form of the replacement Novated Credit Agreement attached to the Third Novation Agreement Supplement shall be disregarded. All other provisions of the Third Novation Agreement Supplement shall continue in full force and effect.
3    Conditions of effectiveness
3.1    The agreement of the Parties referred to in clause 2 shall be subject to each of the following conditions being satisfied to the reasonable satisfaction of the Facility Agent:
(a)    the Facility Agent shall have received from the New Borrower:
(i)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Amendment and as to the truth and completeness of the attached resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Amendment, and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the New Borrower cancelling or amending such prior certificate; and
(ii)    a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the New Borrower;
(b)    the Facility Agent shall have received from the Existing Borrower:
(i)    a certificate from an authorised officer of the Existing Borrower, confirming that there have been no changes or amendments to its constitutional documents, certified copies of which were previously delivered to the Facility Agent pursuant to
    Page 3

the Facility Agreement, or attaching revised versions in case of any changes or amendments; and
(ii)    a copy, certified by an authorised officer of the Existing Borrower, of (A) resolutions of its board of directors approving the transactions contemplated by this Amendment and authorising a person or persons to execute this Amendment and any notices or other documents to be given pursuant hereto and (B) any power of attorney issued pursuant to such resolutions (which shall be certified as being in full force and effect and not revoked or withdrawn);
(c)    the Facility Agent shall have received a duly executed copy of each Fee Letter;
(d)    the Facility Agent shall have received evidence that all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent) required to be paid by the New Borrower pursuant to clause 6 below, and all other documented fees and expenses that the New Borrower has otherwise agreed in writing to pay to the Facility Agent, have been paid or will be paid promptly upon being demanded;
(e)    an amendment to the BpiFAE Insurance Policy duly signed and issued in respect of the arrangements referred to in this Amendment either (i) in an original with ‘wet-ink’ signature(s) or (ii) if the execution of an original of the BpiFAE Insurance Policy is not practicable at the relevant time (having regard to the logistical difficulties caused by COVID-19), electronically signed and initialled, together with written confirmation from BpiFAE that (A) such electronic signature is binding upon BpiFAE, (B) BpiFAE will send an original executed ‘wet-ink’ version of the BpiFAE Insurance Policy to the ECA Agent and the Facility Agent as soon as practicable (again, having regard to the logistical difficulties caused by COVID-19) and (C) such electronically signed BpiFAE Insurance Policy is valid and enforceable irrespective of whether the signed and regularized ‘wet-ink’ policy has at that time been produced and circulated, and in each case, BpiFAE shall not have, prior to the Effective Date, delivered to the Facility Agent or the ECA Agent any notice seeking the cancellation, suspension or termination of the BpiFAE Insurance Policy;
(f)    the Facility Agent shall have received opinions, addressed to the Facility Agent (and capable of being relied upon by each Lender) from:
(i)    Watson Farley & Williams LLP, counsel to the New Borrower, as to matters of Liberian law (and being issued in substantially the same form as the corresponding Liberian legal opinion issued in respect of the original Novation Agreement);
(ii)    Norton Rose Fulbright LLP, counsel to the Facility Agent as to matters of English law (and being issued in substantially the same form as the corresponding English legal opinion issued in respect of the Third Novation Agreement Supplement);
(iii)    Norton Rose Fulbright LLP, counsel to the Facility Agent as to matters relating to the conformity of the BpiFAE Insurance Policy issued by BpiFAE in accordance with paragraph (e) above with the arrangements relating to the Framework set out in this Amendment and the form of replacement Novated Credit Agreement; and
(iv)    Walkers, legal advisors appointed by the Facility Agent as to matters of Cayman Islands law in respect of the Existing Borrower (and being issued in substantially the same form as the corresponding Cayman legal opinion issued in respect of the Third Novation Agreement Supplement),
or, where applicable, a written approval in principle (which can be given by email) by any of the above counsel of the arrangements contemplated by this Amendment and a confirmation that a formal opinion will follow promptly after the Amendment Effective Date;

    Page 4

(g)    evidence that the New Borrower has submitted the Framework Information Package to BpiFAE (including information related to crisis-related liquidity measures) as a basis for BpiFAE to assess the adequacy of the New Borrower’s crisis-related liquidity measures;
(h)    the representations and warranties set out in clause 4 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a Material Adverse Effect (which shall be accurate in all respects)) as of the Amendment Effective Date;
(i)    no Event of Default shall have occurred and be continuing or would result from the amendment of the Novation Agreement pursuant to this Amendment;
(j)    the Existing Borrower and the New Borrower shall, as required pursuant to clause 5, have each provided a letter to the Facility Agent which confirms that the relevant process agent has accepted its appointment as process agent in respect of this Amendment;
(k)    the Facility Agent shall have received a letter from the New Borrower, signed by its Chief Financial Officer, containing a commitment to publish on an annual basis, a publicly available environmental plan that includes (i) an annual measure (in accordance with other public methodology, including IMO methodology) of the greenhouse gas emissions of the New Borrower and its Subsidiaries (including the emissions of their respective vessels) for the two years preceding the date of the relevant publication and (ii) the New Borrower’s strategy to reduce the group’s greenhouse emissions, including details of specific measures implemented (or to be implemented) in order to achieve such reduction;
(l)    the Facility Agent shall have received from the Existing Borrower and the New Borrower such documentation and information as any Finance Party may reasonably request through the Facility Agent to comply with "know your customer" or similar identification procedures under all laws and regulations applicable to that Finance Party; and
(m)    the Facility Agent shall have received evidence that, as required pursuant to clause 9.6(c) of the Receivable Purchase Agreement, the Seller has consented to the amendments to the Novation Agreement set out in this Amendment,
it being acknowledged and agreed by the Facility Agent that the conditions referred to in paragraphs (c), (g), (j), (l) and (m) above have, at the date of this Amendment, been satisfied.
3.2    The Facility Agent shall notify the Lenders, the Existing Borrower and the New Borrower of the Amendment Effective Date by way of a confirmation in the form set out in Schedule 2 and such confirmation shall be conclusive and binding.
4    Representations and Warranties
4.1    The Existing Borrower shall be deemed to repeat the representations and warranties in clause 7.1 of the Facility Agreement on the date of this Amendment and the Amendment Effective Date, in each case, as if made with reference to the facts and circumstances existing on such dates.
4.2    The New Borrower represents and warrants that each of the representations set out in Article VI of the form of the amended and restated Novated Credit Agreement (other than Section 6.10) set out in Schedule 3 are true and correct as if made at the date of this Amendment and at the Amendment Effective Date, in each case with reference to the facts and circumstances existing on such day, as if references to the Loan Documents include this Amendment and as if the amended and restated Novated Credit Agreement was effective at the time of each such repetition.
4.3    In addition to the representations and warranties referred to in clause 4.2 above, the New Borrower:

    Page 5

(a)    represents and warrants to the Facility Agent and each Lender that it is the New Borrower’s intention for the terms of this Amendment and the amendments to be incorporated into the form of the amended and restated Novated Credit Agreement pursuant to this Amendment to be substantially the same terms and amendments as those set out or to be set out in an amendment agreement in respect of each other ECA Financing in existence as at the date of this Amendment;
(b)    covenants and undertakes with the Facility Agent that (to the extent it has not already done so) it shall, on or before the Amendment Effective Date, or as soon as reasonably practicable thereafter enter into an amendment agreement (with such amendments being on substantially the same terms as those set out in this Amendment and the form of the amended and restated Novated Credit Agreement (as applicable)) to the finance documents in respect of each other ECA Financing in existence as at the date of this Amendment in order to substantially reflect the amendments set out in the form of the Amended Novated Agreement provided, however, that this paragraph (b) shall not apply in respect of any other ECA Financing where the lenders under that ECA Financing do not provide their consent to such amendment agreement where the arrangements contemplated by that amendment were proposed to be on substantially the same basis as set out in this Amendment (subject to logical and factual changes),
save that such other amendments shall in each case incorporate changes to reflect (i) any factual differences, (ii) that certain of the other ECA Financings shall contain provisions providing for the deferral of principal repayments to be made by the New Borrower under those ECA Financings in accordance with the Framework and (iii) any particular requirements of an ECA Guarantor, under that relevant ECA Financing.
5    Incorporation of Terms
The provisions of clauses 13 (Miscellaneous and notices), 14.2 (Submission to jurisdiction) and 14.3 (Waiver of immunity) of the Novation Agreement shall be incorporated into this Amendment as if set out in full in this Amendment and as if (a) references to each Party are references to each Party to this Amendment and (b) references to ‘this Agreement’ include this Amendment.
6    Fees, Costs and Expenses
6.1    The New Borrower shall pay to the Facility Agent (for its own account and for the account of the Lenders (as applicable)) and each other relevant Finance Party the fees in the amounts and at the times agreed in the Fee Letters.
6.2    The payment of the above fees shall be made free and clear of any deduction, restriction or withholding and in immediately available freely transferable cleared funds to such account(s) as the Facility Agent shall notify the New Borrower of in advance or, where applicable, in the relevant Fee Letter.
6.3    The New Borrower agrees to pay on demand, on an after-tax basis, all reasonable out-of-pocket costs and expenses in connection with:
(a)    the preparation, execution and delivery of; and
(b)    the administration, modification and amendment of,
this Amendment and all other documents to be delivered hereunder or thereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of Norton Rose Fulbright LLP as the legal adviser to the Lenders and the Facility Agent and the Security Trustee.
7    Counterparts
This Amendment may be executed in any number of counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original but all counterparts shall together constitute one and the same instrument. The Parties acknowledge
    Page 6

and agree that they may execute this Amendment and any variation or amendment to the same, by electronic instrument. The Parties agree that the electronic signatures appearing on the document shall have the same effect as handwritten signatures and the use of an electronic signature on this Amendment shall have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating this Amendment, and evidencing the Parties’ intention to be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests including contract management.
8    Governing Law
This Amendment, and all non-contractual obligations arising in connection with it, shall be governed by and construed in accordance with English law.
The Parties have executed this Amendment the day and year first before written.
    Page 7

Schedule 1
Lenders
Banco Santander, S.A, Paris Branch
BNP Paribas
Citibank N.A., London Branch
HSBC Continental Europe
Société Générale
SMBC Bank International plc
SFIL



Schedule 2

[OMITTED]

    


Schedule 3
Form of Amended and Restated Novated Credit Agreement






HULL NO. C34 CREDIT AGREEMENT

dated 24 July 2017 as novated, amended and restated on the Actual Delivery Date pursuant to a novation agreement dated 24 July 2017 (as amended and restated by a first novation agreement supplement dated 12 March 2020, as amended by a second novation agreement supplement dated 29 August 2020, as further amended and restated by a third novation agreement supplement dated 13 November 2020 and as further amended and restated by a fourth novation agreement supplement dated 12 July 2021)

BETWEEN

Royal Caribbean Cruises Ltd. as the Borrower,

the Lenders from time to time party hereto,

Citibank N.A., London Branch as Global Coordinator

SMBC Bank International plc as ECA Agent and
Citibank Europe plc, UK Branch as Facility Agent and
Citibank N.A., London Branch, Banco Santander, S.A., Paris Branch, BNP Paribas, HSBC Continental Europe, Société Générale and SMBC Bank International plc as Mandated Lead Arrangers




TABLE OF CONTENTS
PAGE
Article I

DEFINITIONS AND ACCOUNTING TERMS
Section 1.1.    Defined Terms    2
Section 1.2.    Use of Defined Terms    29
Section 1.3.    Cross-References    29
Section 1.4.    Accounting and Financial Determinations    29
Article II

COMMITMENTS AND BORROWING PROCEDURES
Section 2.1.    Commitment    30
Section 2.2.    Commitment of the Lenders; Termination and Reduction of Commitments     30
Section 2.3.    Borrowing Procedure    30
Section 2.4.    Funding    33
Article III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
Section 3.1.    Repayments    33
Section 3.2.    Prepayment    33
Section 3.3.    Interest Provisions    34
Section 3.3.1.    Rates    34
Section 3.3.2.    [Intentionally omitted]    35
Section 3.3.3.    Interest stabilisation    35
Section 3.3.4.    Post-Maturity Rates    35
Section 3.3.5.    Payment Dates    35
Section 3.3.6.    Interest Rate Determination; Replacement Reference Banks    35
Section 3.3.7.    Unavailability of the LIBO Rate    36
Section 3.4.    Commitment Fees    37
Section 3.4.1.    Payment    37
Section 3.5.    Other Fees    38
Article IV

CERTAIN LIBO RATE AND OTHER PROVISIONS
Section 4.1.    LIBO Rate Lending Unlawful    38
Section 4.2.    Deposits Unavailable    38
Section 4.3.    Increased LIBO Rate Loan Costs, etc.    39



Section 4.4.    Funding Losses    41
Section 4.4.1.    Indemnity    41
Section 4.4.2.    Exclusion    42
Section 4.5.    Increased Capital Costs    42
Section 4.6.    Taxes    43
Section 4.7.    Reserve Costs    45
Section 4.8.    Payments, Computations, etc.    46
Section 4.9.    Replacement Lenders, etc.    46
Section 4.10.    Sharing of Payments    47
Section 4.10.1.    Payments to Lenders    47
Section 4.10.2.    Redistribution of payments    47
Section 4.10.3.    Recovering Lender’s rights    48
Section 4.10.4.    Reversal of redistribution    48
Section 4.10.5.    Exceptions.    48
Section 4.11.    Set-off    48
Section 4.12.    Use of Proceeds    49
Section 4.13.    FATCA Information    49
Section 4.14.    Resignation of the Facility Agent    50
Article V

CONDITIONS TO BORROWING
Section 5.1.    Advance of the Loan    50
Section 5.1.1.    Resolutions, etc.    50
Section 5.1.2.    Opinions of Counsel    51
Section 5.1.3.    BpiFAE Insurance Policy    51
Section 5.1.4.    Closing Fees, Expenses, etc    51
Section 5.1.5.    Compliance with Warranties, No Default, etc.    52
Section 5.1.6.    Loan Request    52
Section 5.1.7.    Foreign Exchange Counterparty Confirmations    52
Section 5.1.8.    Protocol of delivery    52
Section 5.1.9.    Title to Purchased Vessel    52
Section 5.1.10.    Interest Stabilisation    53
Section 5.1.11.    Escrow Account Security    54
Article VI

REPRESENTATIONS AND WARRANTIES
Section 6.1.    Organization, etc.    54
Section 6.2.    Due Authorization, Non-Contravention, etc.    54
Section 6.3.    Government Approval, Regulation, etc.    55
Section 6.4.    Compliance with Environmental Laws    55
Section 6.5.    Validity, etc.    55
Section 6.6.    No Default, Event of Default or Prepayment Event    55
Section 6.7.    Litigation    55


Section 6.8.    The Purchased Vessel    55
Section 6.9.    Obligations rank pari passu; Liens    56
Section 6.10.    Withholding, etc.    56
Section 6.11.    No Filing, etc. Required    56
Section 6.12.    No Immunity    56
Section 6.13.    Investment Company Act    56
Section 6.14.    Regulation U    56
Section 6.15.    Accuracy of Information    57
Section 6.16.    Compliance with Laws    57
Article VII

COVENANTS
Section 7.1.    Affirmative Covenants    57
Section 7.1.1.    Financial Information, Reports, Notices, etc.    57
Section 7.1.2.    Approvals and Other Consents    60
Section 7.1.3.    Compliance with Laws, etc.    60
Section 7.1.4.    The Purchased Vessel    61
Section 7.1.5.    Insurance    62
Section 7.1.6.    Books and Records    62
Section 7.1.7.    BpiFAE Insurance Policy/French Authority Requirements    62
Section 7.1.8.    Further Assurances in respect of the Framework    62
Section 7.1.9.    Equal Treatment with Pari Passu Creditors    62
Section 7.1.10.    Performance of shipbuilding contract obligations    63
Section 7.2.    Negative Covenants    64
Section 7.2.1.    Business Activities    64
Section 7.2.2.    Indebtedness    64
Section 7.2.3.    Liens    64
Section 7.2.4.    Financial Condition    67
Section 7.2.5.    Additional Undertakings    68
Section 7.2.6.    Consolidation, Merger, etc.    76
Section 7.2.7.    Asset Dispositions, etc.    76
Section 7.2.8.    Borrower’s Procurement Undertaking    77
Section 7.2.9.    Framework Lien and Guarantee Restriction    77
Section 7.3.    Covenant Replacement    78
Section 7.4.    Lender incorporated in the Federal Republic of Germany    79
Article VIII

EVENTS OF DEFAULT
Section 8.1.    Listing of Events of Default    79
Section 8.1.1.    Non-Payment of Obligations    79
Section 8.1.2.    Breach of Warranty    79
Section 8.1.3.    Non-Performance of Certain Covenants and Obligations    79
Section 8.1.4.    Default on Other Indebtedness    79


Section 8.1.5.    Bankruptcy, Insolvency, etc    80
Section 8.2.    Action if Bankruptcy    81
Section 8.3.    Action if Other Event of Default    81
Article IX

PREPAYMENT EVENTS
Section 9.1.    Listing of Prepayment Events    81
Section 9.1.1.    Change of Control    81
Section 9.1.2.    Unenforceability    81
Section 9.1.3.    Approvals    82
Section 9.1.4.    Non-Performance of Certain Covenants and Obligations    82
Section 9.1.5.    Judgments    82
Section 9.1.6.    Condemnation, etc    82
Section 9.1.7.    Arrest    82
Section 9.1.8.    Sale/Disposal of the Purchased Vessel    83
Section 9.1.9.    BpiFAE Insurance Policy    83
Section 9.1.10.    Illegality    83
Section 9.1.11.    Framework Prohibited Events    83
Section 9.2.    Mandatory Prepayment    84
Section 9.3.    Mitigation    84
Article X

THE FACILITY AGENT AND THE ECA AGENT
Section 10.1.    Actions    84
Section 10.2.    Indemnity    85
Section 10.3.    Funding Reliance, etc    85
Section 10.4.    Exculpation    87
Section 10.5.    Successor    88
Section 10.6.    Loans by the Facility Agent    88
Section 10.7.    Credit Decisions    89
Section 10.8.    Copies, etc    89
Section 10.9.    The Agents’ Rights    89
Section 10.10.    The Facility Agent’s Duties    89
Section 10.11.    Employment of Agents    90
Section 10.12.    Distribution of Payments    90
Section 10.13.    Reimbursement    90
Section 10.14.    Instructions    90
Section 10.15.    Payments    91
Section 10.16.    “Know your customer” Checks    91
Section 10.17.    No Fiduciary Relationship    91
Section 10.18.    Illegality    91


Article XI

MISCELLANEOUS PROVISIONS
Section 11.1.    Waivers, Amendments, etc.    91
Section 11.2.    Notices    93
Section 11.3.    Payment of Costs and Expenses    94
Section 11.4.    Indemnification    94
Section 11.5.    Survival    96
Section 11.6.    Severability    96
Section 11.7.    Headings    96
Section 11.8.    Execution in Counterparts, Effectiveness, etc.    96
Section 11.9.    Third Party Rights    96
Section 11.10.    Successors and Assigns    96
Section 11.11.    Sale and Transfer of the Loan; Participations in the Loan    96
Section 11.11.1.    Assignments    97
Section 11.11.2.    Participations    99
Section 11.11.3.    Register    100
Section 11.11.4.    Rights of BpiFAE to payments    100
Section 11.12.    Other Transactions    100
Section 11.13.    BpiFAE Insurance Policy    101
Section 11.13.1.    Terms of BpiFAE Insurance Policy    101
Section 11.13.2.    Obligations of the Borrower    101
Section 11.13.3.    Obligations of the ECA Agent and the Lenders.    101
Section 11.14.    Law and Jurisdiction    102
Section 11.14.1.    Governing Law    102
Section 11.14.2.    Jurisdiction    102
Section 11.14.3.    Alternative Jurisdiction    102
Section 11.14.4.    Service of Process    103
Section 11.15.    Confidentiality    103
Section 11.16.    French Authority Requirements    104
Section 11.17.    Waiver of immunity    104
Section 11.18. Acknowledgement and Consent to Bail-In of EEA Financial Institutions    104

EXHIBITS

Exhibit A - Form of Loan Request
Exhibit B-1 - Form of Opinion of Liberian Counsel to Borrower
Exhibit B-2 - Form of Opinion of English Counsel to the Facility Agent and the Lenders
Exhibit B-3 - Form of Opinion of French Counsel to the Facility Agent and the Lenders
Exhibit B-4 - Form of Opinion of US Tax Counsel to the Lenders
Exhibit C - Form of Lender Assignment Agreement
Exhibit D - Form of Certificate of French Content
Exhibit E-1 - Form of Delivery Non-Yard Costs Certificate
Exhibit E-2 - Form of Final Non-Yard Costs Certificate
Exhibit F - Silversea Indebtedness and Liens


Exhibit G - Form of First Priority Guarantee
Exhibit H - Form of Second Priority Guarantee
Exhibit I - Form of Third Priority Guarantee
Exhibit J - Form of Senior Parties Subordination Agreement
Exhibit K - Form of Other Senior Parties Subordination Agreement
Exhibit L - Framework
Exhibit M - Debt Deferral Extension Regular Monitoring Requirements
Exhibit N - Replacement covenants with effect from the Guarantee Release Date


CREDIT AGREEMENT
HULL NO. C34 CREDIT AGREEMENT, dated 24 July 2017 as novated, amended and restated on the Actual Delivery Date (as defined below), and as amended and restated by a first novation agreement supplement dated 12 March 2020, and as further amended by a second novation agreement supplement dated 29 August 2020, and as further amended and restated by a third novation agreement supplement dated 13 November 2020, and as further novated and restated by a fourth novation agreement supplement dated 12 July 2021 is among Royal Caribbean Cruises Ltd., a Liberian corporation (the “Borrower”), SMBC Bank International plc in its capacity as agent for the Lenders referred to below in respect of BpiFAE-related matters (in such capacity, the “ECA Agent”), Citibank Europe plc, UK Branch in its capacity as facility agent (in such capacity, the “Facility Agent”) and the financial institutions listed in Schedule 1 to the Novation Agreement (as defined below) as lenders (in such capacity, together with each of the other Persons that shall become a “Lender” in accordance with clause 12 of the Novation Agreement or Section 11.11.1 hereof, each of them individually a “Lender” and, collectively, the “Lenders”).
W I T N E S S E T H:
WHEREAS,
1.    The Borrower and Chantiers de l’Atlantique (previously known as STX France S.A.) (the “Builder”) have entered on 30 September 2016 into a Contract for the Construction and Sale of Hull No. C34 (as amended from time to time, the “Construction Contract”) pursuant to which the Builder has agreed to design , construct, equip, complete, sell and deliver the passenger cruise vessel bearing Builder’s hull number C34 which shall be owned by the Nominated Owner (the “Purchased Vessel”);
2.    The Lenders have agreed to make available to the Borrower, upon the terms and conditions contained herein, a US dollar loan facility calculated on the amount (the “Maximum Loan Amount”) equal to the EUR sum of:
a.    eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel, and including Non-Yard Costs of up to EUR 150,000,000 (the “Maximum Non-Yard Costs Amount”), and the Other Basic Contract Price Increases (as defined below) for the Purchased Vessel of up to EUR 68,000,000, (but which, when aggregated with the Non-Yard Costs, shall not exceed an amount equal to EUR 175,000,000), and all of which amounts shall not exceed in aggregate EUR 1,272,411,000;
b.    eighty per cent (80%) of the change orders of up to EUR 117,541,100 effected in accordance with the Construction Contract; and
c.    100% of the BpiFAE Premium (as defined below),
being an amount no greater than EUR1,145,320,530 and being made available in the US Dollar Equivalent of that Maximum Loan Amount (as such Dollar amount may be adjusted pursuant to clause 5.3 of the Novation Agreement);
    1

3.    Of the amounts referred to in recital (B)(i) and (ii) above, the Lenders have made certain amounts available to the Original Borrower during the period prior to the Actual Delivery Date pursuant to this Agreement (the liability for which amount has been assumed by the Borrower following the novation of this Agreement pursuant to the Novation Agreement) and, in relation to the amount referred to in recital (B)(i), the balance has been or shall be made available to the Borrower as an Additional Advance pursuant to the Novation Agreement and this Agreement.
4.    The Parties have previously amended this Agreement pursuant to the Third Novation Agreement Supplement (as defined below) in connection with the provision of the Guarantees (as defined below).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS
Section 1.1.    DEFINED TERMS. The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall, when capitalized, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):
“Accumulated Other Comprehensive Income (Loss)” means at any date the Borrower’s accumulated other comprehensive income (loss) on such date, determined in accordance with GAAP.
“Actual Delivery Date” means the date on which the Purchased Vessel is delivered by the Builder to, and accepted by, the Borrower under the Construction Contract, being also the date on which the final balance of the Loan is advanced by way of the Additional Advances.
“Additional Advances” is defined in the Novation Agreement.
“Additional Guarantee” means a guarantee of the Obligations provided by a New Guarantor in a form and substance substantially the same as the other Guarantees (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and acceptable to BpiFAE.
“Additional Subordination Agreement” means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee, as applicable, in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and the beneficiaries of any Indebtedness incurred by the relevant Guarantor, as applicable, and acceptable to BpiFAE.
“Adjustable Amount” means, as of any time of determination, $500,000,000; provided if the aggregate amount of New Capital is equal to or greater than $500,000,000, then the Adjustable Amount shall be $350,000,000.
    2

“Adjusted Cash Balance” means, as of any date (the “Measurement Date”), the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP plus (a) any amounts available to be drawn by the Borrower and/or any of its Subsidiaries under committed but undrawn term loan or revolving credit facility agreements (excluding any amounts available under agreements where the proceeds are only intended to be used to fund the purchase of new Vessels) and less (b) the sum of (i) any scheduled payments of principal or interest (but for the purposes of anticipating any interest liabilities, the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the Measurement Date) in respect of debt during the period commencing on the Measurement Date and ending on the date that is six months thereafter, (ii) any customer deposits held by the Borrower or its Subsidiaries for cruises that are scheduled to commence within three months of the Measurement Date and (iii) any planned Non-Financed Capex during the period commencing on the Measurement Date and ending on the date that is six months thereafter.
“Adjusted EBITDA After Principal and Interest” means, for any Last Reported Fiscal Quarter, the Borrower’s EBITDA After Principal and Interest for such period, excluding those items, if any, that the Borrower has excluded in determining “Adjusted Net Income” for such period as disclosed in the Borrower’s annual report on 10-K or quarterly report on 10-Q, as applicable, for such Last Reported Fiscal Quarter, as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
“Affiliate” of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or indirectly, power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
“Agent” means either the ECA Agent or the Facility Agent and “Agents” means both of them.
“Agreement” means, on any date, this credit agreement as originally in effect on the Signing Date and as novated, amended and restated by the Novation Agreement and as thereafter from time to time amended, supplemented, amended and restated, or otherwise modified and in effect on such date.
“Annex VI” means Annex VI of the Protocol of 1997 (as subsequently amended from time to time) to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol), as modified by the Protocol of 1978 relating thereto.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.
“Anticipated Delivery Date” means the Expected Delivery Date (as defined in the Receivable Purchase Agreement) as at the Signing Date, namely 20 May 2021.
“Applicable Commitment Rate” means (x) from the Signing Date up to and including the date falling two years prior to the Anticipated Delivery Date, 0.15% per annum, (y) from the day
    3

following the date falling two years prior to the Anticipated Delivery Date up to and including the date falling one year prior to the Anticipated Delivery Date, 0.28% per annum, and (z) from the day following the date falling one year prior to the Anticipated Delivery Date until the Commitment Fee Termination Date, 0.33% per annum.
“Applicable Jurisdiction” means the jurisdiction or jurisdictions under which the Borrower is organized, domiciled or resident or from which any of its business activities are conducted or in which any of its properties are located and which has jurisdiction over the subject matter being addressed.
“Approved Appraiser” means any of the following: Barry Rogliano Salles, Paris, H Clarkson & Co. Ltd., London, R.S. Platou Shipbrokers, Norway, or Fearnley AS, Norway.
“Assignee Lender” is defined in Section 11.11.1.
“Authorized Officer” means those officers of the Borrower authorized to act with respect to the Loan Documents and whose signatures and incumbency shall have been certified to the Facility Agent by the Secretary or an Assistant Secretary of the Borrower.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule; and (b) in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
“Bank Indebtedness” means the Borrower’s Indebtedness up to a maximum aggregate principal amount of $5,300,000,000 under the following agreements (as amended, restated, supplemented, extended, refinanced, replaced or otherwise modified from time to time): (a) the USD1,550,000,000 revolving credit facility maturing in 2022 with Nordea Bank AB (publ), New York Branch as agent, (b) the USD1,925,000,000 revolving credit facility maturing in 2024 with The Bank of Nova Scotia as agent, (c) the USD1,000,000,000 term loan maturing on 5 April 2022 with Bank of America, N.A. as agent, (d) the USD300,000,000 term loan maturing on 7 June 2028 with Nordea Bank ABP, New York Branch as agent, (e) the USD55,827,065 term loan maturing on 5 December 2022 with Sumitomo Mitsui Banking Corporation as agent, (f) the €80,000,000 term loan maturing in November 2024 with Skandinaviska Enskilda Banken AB (publ) as agent, (g) the USD130,000,000 term loan maturing on 2 February 2023 with Industrial and Commercial Bank of China Limited, New York Branch as agent, (h) that certain guarantee dated 18 July 2016 with SMBC Leasing and Finance, Inc. as agent in connection with liabilities relating to the “Lease”, the “Construction Agency Agreement”, the “Participation Agreement” and any other “Operative Document” (as each term is defined in such guarantee) and (i) any other agreement (other than in connection with Credit Card Obligations) as to which the Second Priority Guarantors provide a first priority guarantee package.
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“Bank of Nova Scotia Agreement” means the U.S. $1,925,000,000 amended and restated credit agreement dated as of 4 December 2017 among the Borrower, as borrower, the various financial institutions as are or shall become parties thereto, as lenders, and The Bank of Nova Scotia, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Basic Contract Price” is as defined in the Construction Contract. “Borrower” is defined in the preamble.
“BpiFAE” means BpiFrance Assurance Export, the French export credit agency, a French société par action simplifiée à associé unique with its registered office at 27-31, avenue du Général Leclerc, 94710 Maisons-Alfort Cedex, France, registered at the trade and companies registry of Créteil under number 815 276 308 and includes its successors in title or any other person succeeding to BpiFrance Assurance Export in the role as export credit agency of the Republic of France to manage and provide under its control, on its behalf and in its name the public export guarantees as provided by article L 432-1 of the French insurance code.
“BpiFAE Enhanced Guarantee” means the enhanced guarantee (garantie rehaussée) issued or to be issued by BpiFAE to the benefit of CAFFIL in accordance with article 84 of the French Amending Finance Law 2012 (as amended) in relation to the refinancing of SFIL’s participation and Commitments under the Loan, and any other documents (including any security) entered into or to be entered into by SFIL with CAFFIL and/or BpiFAE in relation thereto.
“BpiFAE Insurance Policy” means the export credit insurance policy in respect of the Loan issued by BpiFAE for the benefit of the Lenders.
“BpiFAE Premium” means the premium payable to BpiFAE under and in respect of the BpiFAE Insurance Policy.
“Builder” is defined in the preamble.
“Business Day” means any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York City, London, Madrid or Paris, and if the applicable Business Day relates to an advance of all or part of the Loan, an Interest Period, prepayment or conversion, in each case with respect to the Loan bearing interest by reference to the LIBO Rate, a day on which dealings in deposits in Dollars are carried on in the London interbank market.
“B34 Facility Amendment Date” means 20 March 2018, the effective date of the third supplemental agreement dated 16 March 2018 to (among other things) a credit facility supported by BpiFAE (pertaining to Hull No. B34) reflecting the alignment of certain provisions and covenants with the Borrower’s revolving credit facility refinanced on 12 October 2017.
“CAFFIL” means Caisse Française de Financement Local, a French société anonyme, with its registered office at 1-3 rue du Passeur de Boulogne, 92130 Issy-les- Moulineaux, France, registered at the trade and companies registry of Nanterre under number 421 318 064.
    5

“Capital Lease Obligations” means obligations of the Borrower or any Subsidiary of the Borrower under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases.
“Capitalization” means, at any date, the sum of (a) Net Debt on such date, plus (b) Stockholders’ Equity on such date.
“Capitalized Lease Liabilities” means the principal portion of all monetary obligations of the Borrower or any of its Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases, and, for purposes of this Agreement and each other Loan Document, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
“Cash Equivalents” means all amounts other than cash that are included in the “cash and cash equivalents” shown on the Borrower’s balance sheet prepared in accordance with GAAP.
“Change of Control” means an event or series of events by which (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 50% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
“CIRR” means 2.56% per annum being the Commercial Interest Reference Rate determined in accordance with the OECD Arrangement for Officially Supported Export Credits to be applicable to the Loan hereunder.
“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.
“Commitment” is defined in Section 2.2 and means, relative to any Lender, such Lender’s obligation to make the Loan pursuant to Section 2.1.
“Commitment Fees” is defined in Section 3.4.
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“Commitment Fee Termination Date” is defined in Section 3.4.
“Commitment Termination Date” means the Back Stop Date (as defined in the Receivable Purchase Agreement) (or such later date as the Lenders and BpiFAE may agree).
“Construction Contract” is defined in the preamble.
“Contract Price” is as defined in the Construction Contract and which includes a lump sum amount in respect of the Non-Yard Costs.
“Contractual Delivery Date” means, at any time, the date which at such time is the date specified for delivery of the Purchased Vessel under the Construction Contract, as such date may be modified from time to time pursuant to the terms of the Construction Contract.
“Covenant Modification Date” means the later to occur of (a) the expiry of the Financial Covenant Waiver Period and (b) the date upon which the financial covenants set out in Section 7.2.4 have been modified in this Agreement in a form and substance satisfactory to BpiFAE, the Borrower and the Lenders.
“Covered Taxes” is defined in Section 4.6.
“Credit Card Obligations” means any obligations of the Borrower under credit card processing arrangements or other similar payment processing arrangements entered into in the ordinary course of business of the Borrower.
“DDTL Indebtedness” means the Borrower’s Indebtedness (or, if such Indebtedness has not yet been incurred, the commitments by lenders to provide Indebtedness to the Borrower as of the effectiveness of the Third Novation Agreement Supplement) in connection with that certain Commitment Letter, dated as of August 12, 2020, between the Borrower and MORGAN STANLEY SENIOR FUNDING INC. (as amended, restated, extended, supplemented, refinanced, replaced or otherwise modified from time to time).
“Debt Deferral Extension Regular Monitoring Requirements" means the general test scheme/reporting package in the form set out in Exhibit M to this Agreement submitted or to be submitted (as the case may be) by the Borrower in accordance with Section 7.1.1(i).
“Debt Incurrence” means any incurrence of Indebtedness for borrowed money by any Group Member, whether pursuant to a public offering or a Rule 144A or other private placement of debt securities (including any secured debt securities (but excluding any unsecured debt securities) convertible into equity securities) or an incurrence of loans under any loan or credit facility, or any issuance of bonds, other than:
(a)    any Indebtedness (but having regard, in respect of any secured and/or guaranteed Indebtedness, to the restrictions set out in Section 7.2.9(b)) incurred by a Group Member between 1 April 2020 and the earlier of (i) the end of the Early Warning Monitoring Period and (ii) 31 December 2023 (or such later date as may, with the prior consent of BpiFAE, be agreed between the Borrower and the Lenders) (the “Debt Incurrence Trigger Date”);

    7

(b)    Indebtedness incurred by a Group Member pursuant to an intra-Group loan from another Group Member, provided that no Group Member shall be permitted to incur any such Indebtedness at any time where an Event of Default or a Prepayment Event has occurred and is continuing;
(c)    Indebtedness incurred to refinance (and for this purpose having regard to the applicable provisions of Section 7.2.9) a maturity payment under any existing loan or credit facility (including any crisis and/or recovery-related Indebtedness incurred by a Group Member prior to the Debt Incurrence Trigger Date) or issued bonds of a Group Member, provided that;
(i)    in the case of any such refinancing, the amount of such Indebtedness being used in connection with that refinancing does not increase the aggregate principal amount of such Indebtedness or the commitments outstanding at the time of that refinancing and is otherwise incurred on a basis permitted pursuant to this Agreement (including, without limitation, in relation to the provision of any Liens or guarantees that may be provided to support the relevant refinancing arrangement); and
(ii)    in the case of the refinancing of crisis and/or recovery-related Indebtedness of the type referred to above, that refinancing shall either (A) reduce the interest burden of the Borrower (and for such purposes the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the time of the new debt incurrence) or (B) replace the existing secured and/or guaranteed Indebtedness with unsecured and unguaranteed debt;
(d)    Indebtedness provided by banks or other financial institutions under the Borrower’s senior unsecured revolving credit facilities in an aggregate amount not greater than the commitments thereunder as in effect on 19 February 2021 plus the amount of any existing uncommitted incremental facilities (i.e. any unused accordion) on such facilities;
(e)    Indebtedness provided by banks or other financial institutions which, as at 19 February 2021, is committed but yet to be incurred in respect of the DDTL Indebtedness (but, in respect of that DDTL Indebtedness, up to a maximum amount of $700,000,000);
(f)    any of the following types of indebtedness in each case incurred in the ordinary course of business of any Group Member and with the prior written consent of BpiFAE:
(i)    the issuances of commercial paper;
(ii)    Capitalized Lease Liabilities;
(iii)    purchase money indebtedness;
(iv)    indebtedness under overdraft facilities; and
(v)    financial obligations in connection with repurchase agreements and/or securities
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lending arrangements; and
(g)    vessel financings (including the financing of pre-delivery contract installments, change orders, owner furnished equipment costs or other such similar arrangements) in respect of vessels for which shipbuilding contracts have been executed on or prior to 28 April 2020 (provided, however, that a refinancing of a vessel financing shall not be included in this carve-out (g)).
“Default” means any Event of Default or any condition, occurrence or event which, after notice or lapse of time or both, would constitute an Event of Default.
“Delivery Non-Yard Costs Certificate” means the certificate to be provided to the Facility Agent in the form of Exhibit E-1 on or prior to the Actual Delivery Date certifying the amount in EUR of the Paid Non-Yard Costs and the Unpaid Non-Yard Costs as at the Actual Delivery Date, duly signed by the Borrower and endorsed by the Builder.
“Dispose” means to sell, transfer, license, lease, distribute or otherwise transfer, and “Disposition” shall have a correlative meaning.
"Disruption Event" means either or both of:
(a)    a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Loan Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties; or
(b)    the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a party preventing that, or any other, party:
(i)    from performing its payment obligations under the Loan Documents; or
(ii)    from communicating with other parties or in accordance with the terms of the Loan Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party whose operations are disrupted.
“Dollar” and the sign “$” mean lawful money of the United States.
“Early Warning Monitoring Period” means the period beginning on the Novation Effective Time and ending on the last day of two consecutive Fiscal Quarters in which the Borrower has achieved a higher Adjusted EBITDA After Principal and Interest for such Fiscal Quarters when compared with the same calculation for the corresponding Fiscal Quarters of the 2019 Fiscal Year, as evidenced pursuant to the certificate to be submitted by the Borrower pursuant to Section 7.1.1(l) (and such date shall be notified to the Borrower by the Facility Agent).

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“EBITDA After Principal and Interest” means, for any Last Reported Fiscal Quarter, the Borrower’s consolidated operating income for such period plus any depreciation and amortization expenses that were deducted in calculating consolidated operating income for such period and minus (a) any scheduled amortization or maturity payments made during such period and (b) consolidated interest expense of the Borrower for such period (net of any capitalized interest and interest income), in each relevant case as determined in accordance with GAAP.
“ECA Agent” is defined in the preamble.
“ECA Financed Vessel” means any Vessel subject to any ECA Financing.
“ECA Financing” means any financing arrangement pursuant to which one or more ECA Guarantor provides guarantees or other credit support (including but not limited to a sale and leaseback transaction or bareboat charter or lease or an arrangement whereby a Vessel under construction is pledged as collateral to secure the indebtedness of a shipbuilder, and, for the avoidance of doubt, committed but undrawn export credit agency facilities), entered into by the Borrower or a Subsidiary for the purpose of financing or refinancing all or any part of the purchase price, cost of design or construction of a Vessel or Vessels or the acquisition of Equity Interests of entities owning, or to own, Vessels.
“ECA Guarantor” means BpiFrance Assurance Export, Finnvera plc or Euler Hermes Aktiengesellschaft (or, in each case, any successor thereof).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of a Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“Effective Date” means the date this Agreement becomes effective pursuant to Section 11.8.
“Effective Time” means the Novation Effective Time as defined in the Novation Agreement.
“Environmental Laws” means all applicable federal, state, local or foreign statutes, laws, ordinances, codes, rules and regulations (including consent decrees and administrative orders) relating to the protection of the environment.
“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities) but excluding any debt securities convertible into such Equity Interests.
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“Escrow Account” means the Dollar escrow account of the Borrower opened or to be opened with the Escrow Account Bank for the purpose of receiving the relevant amount of the Additional Advances in respect of Unpaid Non-Yard Costs in accordance with Section 2.3f).
“Escrow Account Bank” means Citibank N.A., London Branch of Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB.
“Escrow Account Security” means the account security in respect of the Escrow Account executed or, as the context may require, to be executed by the Borrower in favour of the Security Trustee in the form agreed by the Lenders and the Borrower on or about the Restatement Date.
“Escrow Agency and Trust Deed” means the agency and trust deed executed or, as the context may require, to be executed by, amongst others, the Borrower, the parties to this Agreement and the Security Trustee.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EUR”, “Euro” and the sign “€” mean the currency of participating member states of the European Monetary Union pursuant to Council Regulation (EC) 974/98 of 3 May 1998, as amended from time to time.
“Event of Default” is defined in Section 8.1.
“Existing Principal Subsidiaries” means each Subsidiary of the Borrower that is a Principal Subsidiary on the Signing Date.
“Facility Agent” is defined in the preamble and includes each other Person as shall have subsequently been appointed as the successor Facility Agent, and as shall have accepted such appointment, pursuant to Section 10.5.
“FATCA” means (a) Sections 1471 through 1474 of the Code, as in effect at the date hereof, and any current or future regulations promulgated thereunder or official interpretations thereof, (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a)above; or (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
“FATCA Deduction” means a deduction or withholding from a payment under a Loan Document required by FATCA.
“FATCA Exempt Party” means a party to this Agreement that is entitled to receive payments free from any FATCA Deduction.
“Fee Letter” means any letter entered into by reference to this Agreement between any or all of the Facility Agent, the Mandated Lead Arrangers, the Arrangers, the Lenders and/or the
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Borrower setting out the amount of certain fees referred to in, or payable in connection with, this Agreement.
“Final Maturity” means twelve (12) years after the Actual Delivery Date.
“Final Non-Yard Costs Certificate” means the certificate to be provided to the Facility Agent in the form of Exhibit E-2 on or prior to the NYC Cut Off Date certifying the amount in Euro of the Paid Non-Yard Costs as at the date of that certificate, duly signed by the Borrower.
“Financial Covenant Waiver Period” means the period from and including the Novation Effective Time to and including 30 September 2022.
“First Novation Agreement Supplement” means the supplemental agreement dated 12 March 2020 and made between, amongst others, the Original Borrower and the parties hereto, pursuant to which the Novation Agreement was amended and restated.
“First Priority Assets” means the Vessels known on the date the Third Novation Agreement Supplement becomes effective as or that sailed under the name (i) Celebrity Constellation, (ii) Celebrity Equinox, (iii) Celebrity Millennium, (iv) Celebrity Silhouette, (v) Celebrity Summit, (vi) Celebrity Eclipse, (vii) Celebrity Infinity, (viii) Celebrity Reflection and (ix) Celebrity Solstice (it being understood that such Vessels shall remain “First Priority Assets” regardless of any change in name or ownership after such date).
“First Priority Guarantee” means the first priority guarantee granted by the First Priority Guarantor prior to the Effective Time (and any other first priority guarantee granted by a First Priority Holdco Subsidiary in connection with becoming a First Priority Guarantor) in favor of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit G.
“First Priority Guarantor” means Celebrity Cruise Lines Inc. (and any of its successors) and any other First Priority Holdco Subsidiary that has granted or, prior to that entity becoming a First Priority Holdco Subsidiary pursuant to a Disposal of a First Priority Asset in accordance with Section 7.2.5(a)(v)(A), will grant a First Priority Guarantee.
“First Priority Holdco Subsidiaries” means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any First Priority Assets.
“First Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $3,320,000,000):
a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
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b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower.
Notwithstanding the foregoing, a First Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a First Priority Release Event would have occurred but for the continuance of the payment default described above, then a First Priority Release Event will occur immediately upon that payment default being remedied.
“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:
i)    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
ii)    the sum of:
1.    dividends actually paid by the Borrower during such period (including, without limitation, dividends in respect of preferred stock of the Borrower); plus
2.    scheduled payments of principal of all debt less New Financings (determined in accordance with GAAP, but in any event including Capitalized Lease Liabilities) of the Borrower and its Subsidiaries for such period.
“Fixed Rate” means a rate per annum equal to the sum of the CIRR plus the Fixed Rate Margin.
“Fixed Rate Margin” means 0.62% per annum.
“Floating Rate” means a rate per annum equal to the sum of the LIBO Rate plus the Floating Rate Margin.
“Floating Rate Margin” means, for each Interest Period 1.05% per annum.
“Fourth Novation Agreement Supplement” means the supplemental agreement dated 12 July 2021 and made between, amongst others, the Original Borrower, the Security
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Trustee and the parties hereto, pursuant to which the Novation Agreement was amended in connection with the Framework.
“Fourth Supplement Effective Date” has the meaning ascribed to the term “Amendment Effective Date” in the Fourth Novation Agreement Supplement.
“Framework” means the document titled “Debt Deferral Extension Framework” in the form set out in Exhibit L to this Agreement, and which sets out certain key principles and parameters and being applicable to BpiFAE-covered loan agreements such as this Agreement.
“F.R.S. Board” means the Board of Governors of the Federal Reserve System or any successor thereto.
“French Authorities” means the Direction Générale du Trésor of the French Ministry of Economy and Finance, any successors thereto, or any other governmental authority in or of France involved in the provision, management or regulation of the terms, conditions and issuance of export credits including, among others, such entities to whom authority in respect of the extension or administration of export financing matters have been delegated, such as BpiFAE and Natixis DAI.
“Funding Losses Event” is defined in Section 4.4.1.
“GAAP” is defined in Section 1.4.
“Government-related Obligations” means obligations of the Borrower or any Subsidiary of the Borrower under, or Indebtedness incurred by the Borrower or any Subsidiary of the Borrower to satisfy obligations under, any governmental requirement imposed by any Applicable Jurisdiction that must be complied with to enable the Borrower and its Subsidiaries to continue their business in such Applicable Jurisdiction, excluding, in any event, any taxes imposed on the Borrower or any Subsidiary of the Borrower.
“Group” means the Borrower and its Subsidiaries from time to time.
“Group Member” means any entity that is a member of the Group.
“Group Member Guarantee” means any guarantee or other similar or analogous credit support arrangement granted by a Group Member (other than the Borrower) in support of the Indebtedness of another Group Member or any other Person.
“Guarantee” means the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee and (if applicable) any Additional Guarantee and “Guarantees” means any or all of them.
“Guarantee Release Date” means the date upon which the First Priority Release Event, the Second Priority Release Event and the Third Priority Release Event have all occurred and accordingly, subject to Section 7.2.5(g) (and in particular proviso (2) to such Section 7.2.5(g)) each of the Guarantees has been released by the Facility Agent, and also being the date upon which, in accordance with Section 7.3, certain provisions of this Agreement shall be replaced by the
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provisions set out in Exhibit N, and if such date falls prior to the Novation Effective Time, the Guarantee Release Date shall be deemed to occur at the Novation Effective Time.
“Guarantor” means the provider of any Guarantee from time to time and “Guarantors” means any or all of them.
“Hedging Instruments” means options, caps, floors, collars, swaps, forwards, futures and any other agreements, options or instruments substantially similar thereto or any series or combination thereof used to hedge interest, foreign currency and commodity exposures.
“herein”, “hereof”, “hereto”, “hereunder” and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document.
“Historic Screen Rate” means, in relation to the Loan, the most applicable recent rate which appeared on Thomson Reuters LIBOR 01 Page (or any replacement page) for the currency of the Loan and for a period equal to the applicable Interest Period for the Loan and which is no more than 7 days before the commencement of the applicable Interest Period for which such rate may be applicable.
“Illegality Notice” is defined in Section 3.2(b).
“Indebtedness” means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than (i) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 180 days of the date the respective goods are delivered or the respective services are rendered and (ii) any purchase price adjustment, earnout or deferred payment of a similar nature incurred in connection with an acquisition (but only to the extent that no payment has at the time accrued pursuant to such purchase price adjustment, earnout or deferred payment obligation); (c) Indebtedness of others secured by a Lien on the property of such Person, whether or not the respective Indebtedness so secured has been assumed by such Person; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (e) Capital Lease Obligations of such Person; (f) guarantees by such Person of Indebtedness of others, up to the amount of Indebtedness so guaranteed; (g) obligations of such Person in respect of surety bonds and similar obligations; and (h) liabilities arising under Hedging Instruments.
“Indemnified Liabilities” is defined in Section 11.4.
“Indemnified Parties” is defined in Section 11.4.
“Interest Payment Date” means each Repayment Date.
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“Interest Period” means the period between the Actual Delivery Date and the first Repayment Date, and subsequently each succeeding period between two consecutive Repayment Dates.
“Interest Stabilisation Agreement” means an agreement on interest stabilisation entered into between Natixis and each Lender (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of any security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1) in connection with the Loan.
“Investment Grade” means, with respect to Moody’s, a Senior Debt Rating of Baa3 or better and, with respect to S&P, a Senior Debt Rating of BBB- or better.
“Last Reported Fiscal Quarter(s)” means the most recently completed Fiscal Quarter(s) for which the Borrower has filed financial statements with the SEC as part of an annual report on Form 10-Q or a quarterly report on Form 10-Q.
“Lender Assignment Agreement” means any Lender Assignment Agreement substantially in the form of Exhibit C.
“Lender” and “Lenders” are defined in the preamble.
“Lending Office” means, relative to any Lender, the office of such Lender designated as such below its signature hereto or designated in a Lender Assignment Agreement or such other office of a Lender as designated from time to time by notice from such Lender to the Borrower and the Facility Agent, whether or not outside the United States but subject in all cases to the agreement of Natixis DAI in relation to the CIRR, which shall be making or maintaining the Loan of such Lender hereunder.
“LIBO Rate” means the rate per annum of the offered quotation for deposits in Dollars for six months (or for such other period as shall be agreed by the Borrower and the Facility Agent) which appears on Thomson Reuters LIBOR01 Page (or any successor page) at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period; provided that:
i)    subject to Section 3.3.6, if no such offered quotation appears on Thomson Reuters LIBOR01 Page (or any successor page) at the relevant time the LIBO Rate shall be the Historic Screen Rate or, if it is not possible to calculate an Historic Screen Rate, it shall be the rate per annum certified by the Facility Agent to be the average of the rates quoted by the Reference Banks as the rate at which each of the Reference Banks was (or would have been) offered deposits of Dollars by prime banks in the London interbank market in an amount approximately equal to the amount of the Loan and for a period of six months;
ii)    for the purposes of determining the post-maturity rate of interest under Section 3.3.4, the LIBO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Facility Agent
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may determine after consultation with the Lenders, which period shall be no longer than one month unless the Borrower otherwise agrees; and
iii)    if that rate is less than zero, the LIBO Rate shall be deemed to be zero. “Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property to secure payment of a debt or performance of an obligation or other priority or preferential arrangement of any kind or nature whatsoever.
“Lien Basket Amount” is defined in Section 7.2.3(b).
“Loan” means the advances made by the Lenders under this Agreement from time to time or, as the case may be, the aggregate outstanding amount of such advances from time to time.
“Loan Documents” means this Agreement, the Novation Agreement, the First Novation Agreement Supplement, the Second Novation Agreement Supplement, the Third Novation Agreement Supplement, the Fourth Novation Agreement Supplement, the Escrow Agency and Trust Deed, the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee, any Additional Guarantee, the Subordination Agreement, any Additional Subordination Agreement, any New Guarantor Subordination Agreement, the Fee Letters, the Escrow Account Security and any other document designated as a Loan Document by the Borrower and the Facility Agent.
“Loan Request” means the loan request and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit A hereto.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of the Facility Agent or any Lender under the Loan Documents or (c) the ability of the Borrower to perform its payment Obligations under the Loan Documents to which it is a party.
“Material Guarantor” means (i) each of Celebrity Cruise Lines Inc., RCI Holdings LLC, RCL Cruise Holdings LLC and RCL Cruises Ltd (and each of their respective successors) and (ii) any other entity that becomes a First Priority Guarantor, a Second Priority Guarantor or a Third Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement.
“Material Litigation” is defined in Section 6.7.
“Maximum Loan Amount” is defined in the preamble.
“Maximum Non-Yard Costs Amount” is defined in the preamble.
“Monthly Outflow” means, in respect of each monthly period, the quotient obtained by dividing:
a)    the sum of (i) Total Cruise Operating Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (ii) Marketing, Selling and
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Administrative Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter and (iii) Interest Expense, net of Interest Capitalized (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter minus (x) Interest Income (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (y) any non-cash charges or impairments included in the calculation of Total Cruise Operating Expenses or Marketing, Selling and Administrative Expenses pursuant to sub-clause (i) or (ii) of this definition and (z) any loss on extinguishment of debt included in Interest Expenses, net of Interest Capitalized (as each such capitalized expression is defined or referenced in the financial statements of the Borrower); by
b)    three,
as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
“Moody’s” means Moody’s Investors Service, Inc.
“Natixis” means Natixis, a French société anonyme with its registered office at 30, avenue Pierre Mendès France, 75013 Paris, France, registered with the Paris Commercial and Companies Registry under number 542 044 524 RCS Paris.
“Natixis DAI” means Natixis DAI Direction des Activités Institutionnelles.
“Net Debt” means, at any time, the aggregate outstanding principal amount of all debt (including, without limitation, the principal portion of all capitalized leases) of the Borrower and its Subsidiaries (determined on a consolidated basis in accordance with GAAP) less the sum of (without duplication);
a)    all cash on hand of the Borrower and its Subsidiaries; plus
b)    all Cash Equivalents.
“Net Debt to Capitalization Ratio” means, as at any date, the ratio of (a) Net Debt on such date to (b) Capitalization on such date.
“New Capital” means the aggregate gross amount of proceeds from any capital (whether in the form of debt, equity or otherwise) raised by the Borrower or any of its Subsidiaries in one or a series of financings after January 1, 2021 (including (a) amounts borrowed (that were previously undrawn) under committed term loan facilities existing as of such date and (b) Indebtedness borrowed in lieu of the committed term loan facilities described in the foregoing clause (a) if the incurrence of such Indebtedness results in a reduction or termination of such commitments); provided that proceeds of any capital raise which are used substantially concurrently for (i) the purchase price of a new Vessel or (ii) repayment of existing Indebtedness (other than Indebtedness (A) maturing no later than the end of the first full calendar year following the date of such repayment or (B) under any revolving credit agreement the repayment of which is not accompanied by a corresponding permanent reduction in the related revolving credit commitments), in each case, shall not constitute New Capital.

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“New Financings” means proceeds from:
a)    borrowed money (whether by loan or issuance and sale of debt securities), including drawings under this Agreement and any revolving credit facilities of the Borrower, and
b)    the issuance and sale of equity securities.
“New Guarantor” means, with respect to any Vessel delivered after the effectiveness of the Third Novation Agreement Supplement, the Subsidiary of the Borrower that (a) directly owns the Equity Interests of the Principal Subsidiary that acquired such Vessel and (b) delivers an Additional Guarantee.
“New Guarantor Subordination Agreement” means a subordination agreement pursuant to which the Lenders’ rights under the applicable Additional Guarantee will be fully subordinated in right of payment to the rights of the beneficiaries of the applicable Senior Guarantee, which subordination agreement shall be in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and the agent, trustee or other representative for such Senior Guarantee.
“Nominated Owner” means a Subsidiary of the Borrower to be nominated by the Borrower prior to the Actual Delivery Date to take delivery of the Vessel under the Construction Contract.
“Non-Financed Capex” means, with respect to any period, (a) the aggregate amount of purchases of property (including Vessels) and equipment by the Borrower and its Subsidiaries during such period as determined in good faith by the Borrower minus (b) the aggregate amount of committed financing available to be drawn during such period to fund any such purchases of property and equipment.
“Non-Yard Costs” has the meaning assigned to “NYC Allowance” in paragraph 1.5 of Article II of the Construction Contract and, when such expression is prefaced by the word “incurred”, shall mean such amount of the Non-Yard Costs not exceeding EUR 150,000,000 and, when aggregated with the Other Basic Contract Price Increases, in an amount not exceeding EUR 175,000,000, as shall at the relevant time have been paid, or become payable, to the Builder by the Borrower under the Construction Contract as part of the Contract Price.
“Nordea Agreement” means the U.S. $1,150,000,000 amended and restated credit agreement dated as of October 12, 2017, among the Borrower, as the borrower, the various financial institutions as are or shall become parties thereto and Nordea Bank AB (publ), New York Branch as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Novated Loan Balance” is as defined in the Novation Agreement.
“Novation Agreement” means the novation agreement dated 24 July 2017 (as amended and/or restated from time to time, including by way of the Third Novation Agreement Supplement)
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and made between the Original Borrower and the parties hereto pursuant to which (amongst other things) this Agreement was novated, amended and restated.
“Novation Effective Time” is as defined in the Novation Agreement.
“NYC Cut Off Date” means the date falling 60 days after the Actual Delivery Date or such later date as the Lenders (with the approval of BpiFAE) may agree.
“Obligations” means all obligations (payment or otherwise) of the Borrower arising under or in connection with this Agreement.
“Obligors” means the Borrower and the Guarantors.
“Option Period” is defined in Section 3.2(c).
“Organic Document” means, relative to the Borrower, its articles of incorporation (inclusive of any articles of amendment to its articles of incorporation) and its by-laws.
“Original Borrower” means Hibisyeu Finance Limited of Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008, Cayman Islands.
“Other Basic Contract Price Increases” is defined in the Novation Agreement.
“Other ECA Parties” means the facility agents acting on behalf of the creditors under any ECA Financing, whether existing on or after the effectiveness of the Third Novation Agreement Supplement (excluding the Facility Agent acting in any representative capacity in connection with this Agreement).
“Other Guarantees” means the guarantees issued, or to be issued, by any of the First Priority Guarantor, the Second Priority Guarantors, the Third Priority Guarantor or any New Guarantor in favor of any Other ECA Party; provided that any Other Guarantee issued by (a) the First Priority Guarantor shall be pari passu in right of payment with the First Priority Guarantee, (b) any Second Priority Guarantor shall be pari passu (or junior) in right of payment with the Second Priority Guarantee, (c) the Third Priority Guarantor shall be pari passu (or junior) in right of payment with the Third Priority Guarantee and (d) any New Guarantor shall be pari passu in right of payment with each Additional Guarantee issued by such New Guarantor.
“Other Senior Parties” means each agent, trustee or other representative in respect of Bank Indebtedness or Credit Card Obligations.
“Paid Non-Yard Costs” means as at any relevant date, the amount in Euro of the Non- Yard Costs which have been paid for by the Borrower and, where applicable, supplied, installed and completed on the Purchased Vessel and as determined in accordance with the relevant amounts certified in the Delivery Non-Yard Costs Certificate or, as the case may be, the Final Non-Yard Costs Certificate as at such time.
“Pari Passu Creditor” means with respect to any Group Member, any creditor under or in respect of any Indebtedness incurred by such Group Member (including in respect of any ECA
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Financing) which is not, as at December 31, 2020, secured by a Lien over a Vessel or which, at any time (whether pursuant to the operation of Section 7.1.9(d) or otherwise), shares in the same security and/or guarantee package as the Lenders.
“Participant” is defined in Section 11.11.2.
“Participant Register” is defined in Section 11.11.2.
“Percentage” means, relative to any Lender, the percentage set forth opposite its signature hereto or as set out in the applicable Lender Assignment Agreement, as such percentage may be adjusted from time to time pursuant to Section 4.9 or pursuant to Lender Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered pursuant to Section 11.11.1.
“Permitted Refinancing” means, in respect of any Indebtedness or commitments, any amendment, restatement, extension, renewal, refinancing or replacement that does not increase the aggregate principal amount of such Indebtedness or commitments outstanding at the time of such Permitted Refinancing other than by the amount of unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses associated with such amendment, restatement, supplement, refinancing or other modification.
“Person” means any natural person, corporation, limited liability company, partnership, firm, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity.
“Poseidon Principles” means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published in June 2019 as the same may be amended or replaced to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organisation from time to time.
“Prepayment Event” is defined in Section 9.1.
“Principal Subsidiary” means any Subsidiary of the Borrower that owns a Vessel.
“Purchased Vessel” is defined in the preamble.
“Purchase Price” means, with respect to any Vessel, the book value of such Vessel at the time initially acquired by a Principal Subsidiary.
“Receivable Purchase Agreement” is as defined in the Novation Agreement.
“Reference Banks” means Société Générale and SMBC Bank International plc and such other Lender as shall be so named by the Borrower and agrees to serve in such role and each additional Reference Bank and/or each replacement Reference Bank appointed by the Facility Agent pursuant to Section 3.3.6.
“Register” is defined in Section 11.11.3.

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“Repayment Date” means, subject to Section 4.8(c), each of the dates for payment of the repayment installments of the Loan pursuant to Section 3.1.
“Required Lenders” means (a) at any time when SFIL is a Lender, SFIL and at least one other Lender that in the aggregate with SFIL hold more than 50% of the aggregate unpaid principal amount of the Loan or (b) or at any other time, Lenders that in the aggregate hold more than 50% of the aggregate unpaid principal amount of the Loan, and in each case, if no such principal amount is then outstanding, Lenders that in the aggregate have more than 50% of the Commitments.
“Resolution Authority” means any body which has authority to exercise any Write- down and Conversion Powers.
“Restatement Date” means 12 March 2020, being the date on which the form of this Agreement was amended and restated pursuant to the First Novation Agreement Supplement.
“Restricted Credit Enhancement” means any Group Member Guarantee, Lien or other security or other similar or analogous credit support arrangement granted by a Group Member in respect of any Indebtedness of a Group Member.
“Restricted Loan Arrangement” means any loan or credit (including any seller’s credit granted in connection with the sale of a Vessel or other assets (and provided that any such sale complies with the provisions of Section 9.1.11(c))) made available by a Group Member to any Person but excluding any such loan or credit that is provided:
(a)    to another Group Member:
(b)    to a Person in respect of which the Borrower or any Subsidiary holds Equity Interests;
(c)    in circumstances where the relevant credit is a seller’s credit granted by that Group Member in the ordinary course of industry business and consistent with past practice; or
(d)    in circumstances where the relevant credit is otherwise in the ordinary course of business and/or consistent with past practice (it being agreed that any loans provided by the Group to its travel agents, vendors or customers to assist the Group during the crisis and/or recovery will be considered in the ordinary course of business) and where the aggregate amount of such credit referred to in this paragraph (d) does not exceed $100,000,000 (or its equivalent in any other currency) at any relevant time,
provided that no Group Member shall be permitted to make or grant any new loan or other credit (or make any further advances in respect of any existing loan or other credit) of any kind to any Person at any time where an Event of Default or a Prepayment Event has occurred and is continuing. It is agreed that for the purpose of this definition “credit” shall not include any short term trade and/or operational receivables owing to a Group Member by a Person who is not a Group Member and which are created or arise in the ordinary course of business.
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“Restricted Payments” means any dividend or other distribution (whether in cash, securities or other property (other than Equity Interests)), with respect to any Equity Interests in the Borrower, or any share buy-back program or other payment (whether in cash, securities or other property (other than Equity Interests)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrower.
“Restricted Voluntary Prepayment” means, in respect of any Indebtedness for borrowed money of any Group Member (other than any such Indebtedness incurred pursuant to an ECA Financing), the relevant Group Member elects to prepay, repay or redeem that Indebtedness prior to its scheduled maturity date other than:
(a)    any Indebtedness which is scheduled to mature on or prior to the end of the following calendar year (and whether pursuant to an amendment and extension of the agreements evidencing such Indebtedness and/or using proceeds raised by any Group Member in connection with any issuance of capital (whether in the form of Indebtedness for borrowed money, equity or otherwise but, in the case of any Indebtedness, subject to that Indebtedness being incurred in compliance with the carve-out provision set out in paragraph (c) of the definition of Debt Incurrence) or pursuant to the exercise of the equity claw feature in the Secured Note Indenture), provided, however, that the Borrower may, with the prior written consent of BpiFAE, prepay, repay or redeem any notes issued under indentures which are callable in accordance with their terms, including any call date through the use of the equity claw feature;
(b)    pursuant to a voluntary repayment under a revolving credit facility that does not result in the permanent reduction of the relevant revolving credit commitments under that revolving credit facility; and/or
(c)    where such prepayment, repayment or redemption is made solely for the purpose of avoiding an event of default or acceleration under the terms of the facility agreement in respect of the relevant Indebtedness.
“S&P” means Standard & Poor’s Financial Services LLC, a wholly-owned subsidiary of The McGraw-Hill Financial Inc.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions- related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state, or any person owned or controlled by any such Person or Persons, or (b) any Person operating, organized or resident in a Sanctioned Country.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or
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the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom.
“SEC” means the United States Securities and Exchange Commission and any successor thereto.
“Second Novation Agreement Supplement” means the supplemental agreement dated 29 August 2020 and made between, amongst others, the Original Borrower and the parties hereto, pursuant to which the Novation Agreement was supplemented.
“Second Priority Assets” means the Vessels known on the date the Third Novation Agreement Supplement becomes effective as or that sailed under the name (i) Azamara Quest, (ii) Azamara Pursuit, (iii) Azamara Journey, (iv) Celebrity Edge, (v) Celebrity Apex, (vi) Celebrity Flora, (vii) Celebrity Xpedition, (viii) Celebrity Xperience, (ix) Celebrity Xploration, (x) Monarch, (xi) Horizon and (xii) Sovereign (it being understood that such Vessels shall remain “Second Priority Assets” regardless of any change in name or ownership after such date).
“Second Priority Guarantee” means the second priority guarantee granted by the Second Priority Guarantors prior to the Effective Time (and any other second priority guarantee granted by a Second Priority Holdco Subsidiary in connection with becoming a Second Priority Guarantor) in favor of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit H.
“Second Priority Guarantors” means RCL Cruise Holdings LLC, Torcatt Enterprises S.A., RCL Holdings Cooperatief UA, RCL Cruises Ltd and RCL Investments Ltd (and any of their respective successors) and any other Second Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Second Priority Holdco Subsidiary pursuant to a Disposal of a Second Priority Asset in accordance with Section 7.2.5(b)(iii)(A), will grant a Second Priority Guarantee.
“Second Priority Holdco Subsidiaries” means (a) RCL Cruises Ltd. or any other Subsidiaries of the Borrower that directly own all of the equity interests in (i) RCL TUI Cruises German Verwaltungs GmbH and (ii) RCL TUI Cruises German Holding GmbH & Co. KG and (b) one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Second Priority Asset. For the avoidance of doubt, Second Priority Holdco Subsidiaries shall not include any Principal Subsidiary.
“Second Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $3,320,000,000):
a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
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b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Second Priority Guarantors in respect of the Bank Indebtedness.
Notwithstanding the foregoing, a Second Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Second Priority Release Event would have occurred but for the continuance of the payment default described above, then a Second Priority Release Event will occur immediately upon that payment default being remedied.
“Secured Note Indebtedness” means the Borrower’s Indebtedness under the Secured Note Indenture.
“Secured Note Indenture” means that certain Indenture, dated as of May 19, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time) in respect of the $1,000,000,000 10.875% senior secured notes due 2023 and $2,320,000,000 11.50% senior secured notes due 2025, by and among the Borrower, as issuer, the guarantors party thereto from time to time, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee and as security agent.
“Security Trustee” means Citicorp Trustee Company Limited of Citigroup Centre, Canada Square, London E14 5LB in its capacity as security trustee for the purpose of the Escrow Account Security.
“Senior Debt Rating” means, as of any date, (a) the implied senior debt rating of the Borrower for debt pari passu in right of payment and in right of collateral security with the Obligations as given by 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).
“Senior Guarantee” means any guarantee by a New Guarantor of Indebtedness incurred by the Borrower or any of its Subsidiaries after the effectiveness of the Third Novation Agreement Supplement; provided that the aggregate principal amount of Indebtedness guaranteed under any Senior Guarantee shall in no case exceed 10.0% of the Purchase Price of the relevant Vessel owned by the Principal Subsidiary of such New Guarantor that acquired such Vessel.
“Senior Parties” means each agent, trustee or other representative in respect of Unsecured Note Indebtedness or DDTL Indebtedness.

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“SFIL” means SFIL, a French société anonyme with is registered office at 1-3 rue du Passeur de Boulogne, 92130 Issy-les-Moulineaux, France, registered at the trade and companies registry of Nanterre under number 428 782 585.
“Signing Date” means the date of the Novation Agreement.
“Statement of Compliance” means a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.
“Spot Rate of Exchange” is as defined in the Novation Agreement.
“Stockholders’ Equity” means, as at any date, the Borrower’s stockholders’ equity on such date, excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP, provided that any non-cash charge to Stockholders’ Equity resulting (directly or indirectly) from a change after the Signing Date in GAAP or in the interpretation thereof shall be disregarded in the computation of Stockholders’ Equity such that the amount of any reduction thereof resulting from such change shall be added back to Stockholders’ Equity.
“Subordination Agreement” means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee executed by the Facility Agent and any of the Senior Parties or Other Senior Parties.
“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.
“Third Novation Agreement Supplement” means the supplemental agreement dated 13 November 2020 and made between, amongst others, the Original Borrower and the parties hereto, pursuant to which the Novation Agreement was supplemented.
“Third Priority Assets” means the Vessels known on the date the Third Novation Agreement Supplement becomes effective as (i) Symphony of the Seas, (ii) Oasis of the Seas, (iii) Harmony of the Seas, (iv) Spectrum of the Seas, (v) Quantum of the Seas, (vi) Ovation of the Seas and (vii) Anthem of the Seas (it being understood that such Vessels shall remain “Third Priority Assets” regardless of any change in name or ownership after the such date).
“Third Priority Guarantee” means the third priority guarantee granted by RCI Holdings LLC prior to the Effective Time (and any other third priority guarantee granted by a Third Priority Holdco Subsidiary in connection with becoming a Third Priority Guarantor) in favor of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit I.
“Third Priority Guarantor” means RCI Holdings LLC (and any of its successors) and any other Third Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Third
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Priority Holdco Subsidiary pursuant to a Disposal of a Third Priority Asset in accordance with Section 7.2.5(c)(iii)(A), will grant a Third Priority Guarantee.
“Third Priority Holdco Subsidiaries” means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Third Priority Asset.
“Third Priority Release Event” means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Unsecured Note Indebtedness and the DDTL Indebtedness outstanding as of the effectiveness of the Third Novation Agreement Supplement (being, in aggregate, $1,700,000,000):
a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Third Priority Guarantor in respect of the Unsecured Note Indebtedness, the DDTL Indebtedness and the Bank Indebtedness.
Notwithstanding the foregoing, a Third Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Third Priority Release Event would have occurred but for the continuance of the payment default described above, then a Third Priority Release Event will occur immediately upon that payment default being remedied.
“UK Bail-In Legislation” means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 of Directive 2014/59/EU) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“Unpaid Non-Yard Costs” means, as at the Actual Delivery Date, the amount in Euro of the Non-Yard Costs which have not been paid for by the Borrower and/or where applicable, supplied, installed and completed on the Purchased Vessel as at the Actual Delivery Date and as determined in accordance with the relevant amounts certified in the Delivery Non-Yard Costs Certificate.

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“US Dollar Equivalent” means (i) for all EUR amounts payable in respect of the Additional Advances for the amount of the Non-Yard Costs or the Other Basic Contract Price Increases referred to in clause 5.2(a) of the Novation Agreement (and disregarding for the purposes of this definition that the Additional Advance in respect of such amounts shall be drawn in Dollars), such EUR amounts converted to a corresponding Dollar amount at the Weighted Average Rate of Exchange and (ii) for the EUR amount payable in respect of the Additional Advance for the BpiFAE Premium referred to in clause 5.2(b) of the Novation Agreement and for the calculation and payment of the Novated Loan Balance (as defined in the Novation Agreement), the amount thereof in EUR converted to a corresponding Dollar amount as determined by the Facility Agent on the basis of the Spot Rate of Exchange. Such rate of exchange under (i) above shall be evidenced by foreign exchange counterparty confirmations to the extent applicable. The US Dollar Equivalent of the Maximum Loan Amount shall be calculated by the Borrower in consultation with the Facility Agent no less than two (2) Business Days prior to the proposed Actual Delivery Date.
“United States” or “U.S.” means the United States of America, its fifty States and the District of Columbia.
“Unsecured Note Indebtedness” means the Borrower’s Indebtedness under the Unsecured Note Indenture.
“Unsecured Note Indenture” means that certain Indenture, dated as of June 9, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time) in respect of the $1,000,000,000 9.125% senior notes due 2023, by and among the Borrower, as issuer, the guarantor party thereto, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee.
“Vessel” means a passenger cruise vessel owned by a Group Member.
“Weighted Average Rate of Exchange” means the weighted average rate of exchange that the Borrower has agreed, either in the spot or forward currency markets, to pay its counterparties for the purchase of the relevant amounts of euro with Dollars for the payment of the euro amount of the Contract Price (including the portion thereof comprising the change orders, any Other Basic Contract Price Increases and the Non-Yard Costs) and including in such weighted average calculation (a) the NYC Applicable Rate (as defined in the Novation Agreement) in relation to the portion of the Contract Price comprising the Non-Yard Costs and (b) the spot rates for any other euro amounts that have not been hedged by the Borrower.
“Write-Down and Conversion Powers” means: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule; and (b) in relation to any UK Bail-In Legislation: (i) any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that
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person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and (ii) any similar or analogous powers under that UK Bail-In Legislation.
Section 1.2.    USE OF DEFINED TERMS. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall, when capitalized, have such meanings when used in the Loan Request and each notice and other communication delivered from time to time in connection with this Agreement or any other Loan Document.
Section 1.3.    CROSS-REFERENCES. Unless otherwise specified, references in this Agreement and in each other Loan Document to any Article or Section are references to such Article or Section of this Agreement or such other Loan Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.
Section 1.4.    ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless otherwise specified, all accounting terms used herein or in any other Loan Document shall be interpreted, all accounting determinations and computations hereunder or thereunder (including under Section 7.2.4) shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with United States generally accepted accounting principles (“GAAP”) consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies); provided that if the Borrower elects to apply or is required to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP, upon any such election and notice to the Facility Agent, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided further that if, as a result of (i) any change in GAAP or IFRS or in the interpretation thereof or (ii) the application by the Borrower of IFRS in lieu of GAAP, in each case, after the date of the financial statements referred to in Section 6.15, there is a change in the manner of determining any of the items referred to herein or thereunder that are to be determined by reference to GAAP, and the effect of such change would (in the reasonable opinion of the Borrower or the Facility Agent) be such as to affect the basis or efficacy of the financial covenants contained in Section 7.2.4 in ascertaining the consolidated financial condition of the Borrower and its Subsidiaries and the Borrower notifies the Facility Agent that the Borrower requests an amendment to any provision hereof to eliminate such change occurring after the date hereof in GAAP or the application thereof on the operation of such provision (or if the Facility Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), then such item shall for the purposes of Section 7.2.4 continue to be determined in accordance with GAAP relating thereto as if GAAP were applied immediately prior to such change in GAAP or in the interpretation thereof until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding the foregoing, all obligations of any person that are or would be characterized as operating lease obligations in accordance with GAAP on the B34 Facility Amendment Date (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations for the purposes of this Agreement regardless of any change in GAAP following the B34 Facility Amendment Date that would otherwise require such obligations to be recharacterized (on a prospective or retroactive basis or otherwise) as capital
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leases, provided that, for clarification purposes, operating leases recorded as liabilities on the balance sheet due to a change in accounting treatment, or otherwise, shall for all purposes not be treated as Indebtedness, Capital Lease Obligations or Capitalized Lease Liabilities.
ARTICLE II

COMMITMENTS AND BORROWING PROCEDURES
Section 2.1.    COMMITMENT. On the terms and subject to the conditions of this Agreement (including Article V), each Lender severally agrees to make its portion of the Loan pursuant to its Commitment described in Section 2.2. No Lender’s obligation to make its portion of the Loan shall be affected by any other Lender’s failure to make its portion of the Loan.
Section 2.2.    COMMITMENT OF THE LENDERS; TERMINATION AND REDUCTION OF COMMITMENTS.
a)    Each Lender will make its portion of the Loan available to the Borrower in accordance with Section 2.3 on the Actual Delivery Date. The commitment of each Lender described in this Section 2.2 (herein referred to as its “Commitment”) shall be the commitment of such Lender to make available to the Borrower its portion of the Loan hereunder expressed as the initial amount set forth opposite such Lender’s name on its signature page attached hereto or, in the case of any Lender that becomes a Lender pursuant to an assignment pursuant to Section 11.11.1, the amount set forth as such Lender’s Commitment in the related Lender Assignment Agreement, in each case as such amount may be reduced from time to time pursuant clause 10.2 of the Novation Agreement or reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.11.1. Notwithstanding the foregoing, each Lender’s Commitment shall terminate on the earlier of (i) the Commitment Termination Date if the Purchased Vessel is not delivered prior to such date and (ii) the Actual Delivery Date.
b)    If any Lender shall default in its obligations under Section 2.1, the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Lender.
Section 2.3.    BORROWING PROCEDURE.
a)    Part of the Loan in an amount equal to the Novated Loan Balance shall be assumed by the Borrower and be deemed to be advanced to, and borrowed by the Borrower, pursuant to the provisions of clause 3 of the Novation Agreement and thereafter converted into Dollars pursuant to clause 5.1 of the Novation Agreement.
b)    In relation to the amount of the Loan comprised by the Additional Advances, the Borrower shall deliver a Loan Request and the documents required to be delivered pursuant to Section 5.1.1(a) to the Facility Agent on or before 3:00 p.m., London time, not less than two (2) Business Days prior to the anticipated Actual Delivery Date. The Additional Advances shall be drawn in Dollars.
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c)    The Facility Agent shall promptly notify each Lender of the Loan Request in respect of the Additional Advances by forwarding a copy thereof to each Lender, together with its attachments. On the terms and subject to the conditions of this Agreement, the portion of the Loan in respect of the Additional Advances shall be made on the Actual Delivery Date. On or before 11:00 a.m., London time, on the Actual Delivery Date, the Lenders shall, without any set-off or counterclaim, deposit with the Facility Agent same day funds in an amount equal to such Lender’s Percentage of the requested portion of the Additional Advances in Dollars. Such deposits will be made to such account which the Facility Agent shall specify from time to time by notice to the Lenders. To the extent funds are so received from the Lenders (and having regard, where applicable, to Sections 2.3d), e) and f) below), the Facility Agent shall, without any set-off or counterclaim, make such funds available to the Borrower on the Actual Delivery Date by wire transfer of same day funds to the accounts the Borrower shall have specified in its Loan Request.
d)    If the Borrower elects to finance that part of the BpiFAE Premium payable by the Borrower with an Additional Advance under clause 5.2(b)(i) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request. The amount of the advance in Dollars (the “US Dollar BpiFAE Advance Amount”) that will fund the BpiFAE Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the BpiFAE Premium to be financed with such advance, which amount shall be determined by the Facility Agent based on the Spot Rate of Exchange. The Facility Agent shall notify the Borrower and the Lenders of the US Dollar BpiFAE Advance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar BpiFAE Advance Amount with the Facility Agent in accordance with Section 2.3.c). The Facility Agent shall furnish a certificate to the Borrower on the date such Loan Request is delivered setting forth such Spot Rate of Exchange, its derivation and the calculation of the US Dollar BpiFAE Advance Amount. If the Borrower elects to so finance the BpiFAE Premium, the Borrower will be deemed to have directed the Facility Agent to pay over directly to BpiFAE on behalf of the Borrower that portion of the EUR amount of the BpiFAE Premium to be financed with the proceeds of the advance on the Actual Delivery Date and to retain for its own account deposits made by the Lenders in Dollars in an amount equal to the portion of the US Dollar BpiFAE Advance Amount attributable to the BpiFAE Premium paid by the Facility Agent to BpiFAE on behalf of the Borrower.
e)    If the Borrower elects to finance that part of the BpiFAE Premium payable by the Borrower with an Additional Advance under clause 5.2(b)(ii) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request (and whether it wishes to receive such amount in EUR or in Dollars). The amount of the advance in Dollars (the “US Dollar BpiFAE Balance Amount”) that will fund the BpiFAE Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the BpiFAE Premium to be financed with such advance, which amount shall be determined by the Facility Agent based on the Spot Rate of Exchange. The Facility Agent shall notify the Borrower and the Lenders of the US Dollar BpiFAE Balance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar BpiFAE Balance Amount with the Facility Agent in accordance with Section 2.3.c). The Facility Agent shall furnish a certificate to the Borrower on the date such Loan Request is delivered setting forth such Spot Rate of Exchange, its derivation and the calculation of the US Dollar
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BpiFAE Balance Amount. If the Borrower elects to so finance the BpiFAE Premium and receive the proceeds in EUR, the Borrower will be deemed to have directed the Facility Agent to pay over to the Borrower that portion of the EUR amount of the BpiFAE Premium to be financed with the proceeds of the advance on the Actual Delivery Date and to retain for its own account deposits made by the Lenders in Dollars in an amount equal to the US Dollar BpiFAE Balance Amount.
f)    In relation to any Additional Advance that is to be advanced to the Borrower in respect of the Non-Yard Costs it is agreed that:
i)    an amount equal to the US Dollar Equivalent of eighty per cent (80%) of the Paid Non-Yard Costs shall be advanced to the Borrower on the Actual Delivery Date in accordance with the provisions of Section 2.3 c), which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery Non-Yard Costs Certificate; and
ii)    an amount equal to the US Dollar Equivalent of eighty per cent (80%) of the Unpaid Non-Yard Costs, which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery Non-Yard Costs Certificate (the “Escrow Amount”), shall be remitted by the Facility Agent (and the Borrower hereby instructs the Facility Agent to make such remittance) to the Escrow Account and such amount shall be regulated in accordance with the following provisions of this Section 2.3 f) and the Escrow Account Security, subject to the aggregate of the amounts referred to in i) and ii) above not exceeding the Maximum Non-Yard Costs Amount.
Where an Escrow Amount payment is made to the Escrow Account pursuant to ii) above, the Borrower shall be entitled at any time prior to the NYC Cut Off Date to provide the Facility Agent with the Final Non-Yard Cost Certificate setting out the final amount of the Paid Non-Yard Costs. Where the Final Non-Yard Costs Certificate is so received by the Facility Agent, the Facility Agent shall determine promptly the US Dollar Equivalent of the EUR amount of the Paid Non-Yard Costs and within one Business Day thereafter shall authorize the release of the Escrow Amount (or, if less, an amount equal to the US Dollar Equivalent of eighty per cent of the final amount of the Paid Non-Yard Costs (as determined above) less the amount previously advanced to the Borrower under i) above) to the Borrower. Any interest accruing on the Escrow Account shall be released to the Borrower at the same time as the release of the Escrow Amount (or, if applicable, part thereof) to the Borrower pursuant to this provision.
If any amount of the Escrow Amount remains on the Escrow Account on the day falling immediately after the NYC Cut Off Date (having regard to any applicable permitted release of moneys from the Escrow Account to the Borrower referred to above) then on the Business Day thereafter the Facility Agent shall be entitled to request the withdrawal of that amount from the Escrow Account and shall apply the amount so received, on behalf of the Borrower, in or towards prepayment of the Loan.
The basis on which the Escrow Account Security is held by the Security Trustee for the benefit of the Lenders is regulated under the Escrow Agency and Trust Deed.
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Section 2.4.    FUNDING. Each Lender may, if it so elects, fulfill its obligation to make or continue its portion of the Loan hereunder by causing a branch or Affiliate (or an international banking facility created by such Lender) other than that indicated next to its signature to this Agreement or, as the case may be, in the relevant Lender Assignment Agreement, to make or maintain such portion of the Loan; provided that such portion of the Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay such portion of the Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility; provided, further, that the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had the Lender not caused such branch or Affiliate (or international banking facility) to make or maintain such portion of the Loan.
ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
Section 3.1.    REPAYMENTS.
a)    The Borrower shall repay the Loan in 24 equal semi-annual installments, with the first installment to fall due on the date falling six (6) months after the Actual Delivery Date and the final installment to fall due on the date of Final Maturity.
b)    No such amounts repaid by the Borrower pursuant to this Section 3.1 may be re- borrowed under the terms of this Agreement.
Section 3.2.    PREPAYMENT.
a)    The Borrower
i)    may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of the Loan; provided that:
(A)    all such voluntary prepayments shall require at least five (5) Business Days’ prior written notice to the Facility Agent; and
(B)    all such voluntary partial prepayments shall be in an aggregate minimum amount of $10,000,000 and a multiple of $1,000,000 (or in the remaining amount of the Loan) and shall be applied in inverse order of maturity or ratably among all remaining installments, as the Borrower shall designate to the Facility Agent, in satisfaction of the remaining repayment installments of the Loan; and
ii)    shall, immediately upon any acceleration of the repayment of the installments of the Loan pursuant to Section 8.2 or 8.3 or the mandatory prepayment of the Loan pursuant to Section 9.2, repay the Loan.
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b)    If it becomes unlawful in any jurisdiction for any Lender to perform any of its obligations under the Loan Documents or to maintain or fund its portion of the Loan, the affected Lender may give written notice (the “Illegality Notice”) to the Borrower and the Facility Agent of such event, including reasonable details of the relevant circumstances.
c)    If an affected Lender delivers an Illegality Notice, the Borrower, the Facility Agent and the affected Lender shall discuss in good faith (but without obligation) what steps may be open to the relevant Lender to mitigate or remove such circumstances but, if they are unable to agree such steps within 20 Business Days or if the Borrower so elects, the Borrower shall have the right, but not the obligation, exercisable at any time within 50 days after receipt of such Illegality Notice or, if earlier, the date upon which the unlawful event referred to in (b) above will apply (but not being a date falling earlier than the end of the 20 Business Day period referred to above) (the “Option Period”), either (1) to prepay the portion of the Loan held by such Lender in full on or before the expiry of the Option Period, together with all unpaid interest and fees thereon accrued to but excluding the date of such prepayment, or (2) to replace such Lender on or before the expiry of the Option Period with one or more financial institutions (I) acceptable to the Facility Agent (such consent not to be unreasonably withheld or delayed) and (II) where relevant, eligible to benefit from an Interest Stabilisation Agreement, pursuant to assignment(s) notified to and consented in writing by BpiFAE and, where relevant Natixis DAI, provided that (x) in the case of a single assignment, any such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or, in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement and (y) no Lender shall be obliged to make any such assignment as a result of an election by the Borrower pursuant to this Section 3.2(c) unless and until such Lender shall have received one or more payments from one or more Assignee Lenders and/or the Borrower in an aggregate amount at least equal to the portion of the Loan held by such Lender, together with all unpaid interest and fees thereon accrued to but excluding the date of such assignment (and all other amounts then owing to such Lender under this Agreement).
Each prepayment of the Loan made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4. No amounts prepaid by the Borrower may be re-borrowed under the terms of this Agreement.
Section 3.3.    INTEREST PROVISIONS. Interest on the outstanding principal amount of the Loan shall accrue and be payable in accordance with this Section 3.3.
Section 3.3.1.    Rates. The Loan shall accrue interest from the Actual Delivery Date to the date of repayment or prepayment of the Loan in full to the Lenders at either the Fixed Rate or, where the proviso to Section 5.1.10 applies, the Floating Rate. Interest calculated at the Fixed Rate or the Floating Rate shall (having regard in the case of a Defaulting Lender to Section 10.3(b)) be payable in arrears on each Repayment Date. The Loan shall bear interest from and including the first day of the applicable Interest Period to (but not including) the last day of such Interest
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Period at the interest rate determined as applicable to the Loan. All interest shall be calculated on the basis of the actual number of days elapsed over a year comprised of 360 days.
Section 3.3.2.    [Intentionally omitted]
Section 3.3.3.    Interest stabilisation. Each Lender who is a party hereto on the Restatement Date represents and warrants to the Borrower that it has entered into an Interest Stabilisation Agreement and any Lender not a party hereto on the Restatement Date (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1(iv)) represents and warrants to the Borrower on the date that such Lender becomes a party hereto that it has entered into an Interest Stabilisation Agreement on or prior to becoming a party hereto.
Section 3.3.4.    Post-Maturity Rates. After the date any principal amount of the Loan is due and payable (whether on any Repayment Date, upon acceleration or otherwise), or after any other monetary Obligation of the Borrower shall have become due and payable, the Borrower shall pay, but only to the extent permitted by law, interest (after as well as before judgment) on such amounts for each day during the period of such default at a rate per annum certified by the Facility Agent to the Borrower (which certification shall be conclusive in the absence of manifest error) to be equal to the sum of the Floating Rate plus 1.5% per annum.
Section 3.3.5.    Payment Dates. Interest accrued on the Loan shall be payable, without duplication, on the earliest of:
a)    each Interest Payment Date;
b)    each Repayment Date;
c)    the date of any prepayment, in whole or in part, of principal outstanding on the Loan (but only on the principal so prepaid); and
d)    on that portion of the Loan the repayment of which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.
Section 3.3.6.    Interest Rate Determination; Replacement Reference Banks. Where Section 3.3.4 or the Floating Rate applies, the Facility Agent shall obtain from each Reference Bank timely information for the purpose of determining the LIBO Rate in the event that no offered quotation appears on Thomson Reuters LIBOR01 Page (or any successor page) and the LIBO Rate is to be determined by reference to quotations supplied by the Reference Banks and not by reference to the Historic Screen Rate. If any one or more of the Reference Banks shall fail to furnish in a timely manner such information to the Facility Agent for any such interest rate, the Facility Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Banks. If the Borrower elects to add an additional Reference Bank hereunder or a Reference Bank ceases for any reason to be able and willing to act as such, the Facility Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Bank reasonably acceptable to the Borrower, and such replaced Reference Bank shall cease to be a Reference Bank hereunder. The Facility
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Agent shall furnish to the Borrower and to the Lenders each determination of the LIBO Rate made by reference to quotations of interest rates furnished by Reference Banks (it being understood that the Facility Agent shall not be required to disclose to any party hereto (other than the Borrower) any information regarding any Reference Bank or any rate quoted by a Reference Bank, including, without limitation, whether a Reference Bank has provided a rate or the rate provided by any individual Reference Bank).
Interest accrued on the Loan or other monetary Obligations arising under this Agreement or any other Loan Document after the date such amount is due and payable (whether upon acceleration or otherwise) shall be payable upon demand.
Section 3.3.7.    Unavailability of the LIBO Rate.
Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Facility Agent determines (which determination shall, in the absence of manifest error, be conclusive) or the Borrower or the Required Lenders notify the Facility Agent (with, in the case of the Required Lenders, a copy to Borrower) that the Borrower or the Required Lenders (as applicable) have determined that:
a)    adequate and reasonable means would not exist for ascertaining (should the Floating Rate apply) the LIBO Rate for the relevant Interest Period including, without limitation, because the LIBO Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
b)    the administrator of the LIBO Rate or a governmental authority having jurisdiction over the Facility Agent has made a public statement identifying a specific date after which the LIBO Rate shall no longer be made available or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”); or
c)    syndicated loans currently being executed, or existing syndicated loans that include language similar to that contained in this section 3.3.7, are being executed and/or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate, then, reasonably promptly after such determination by the Facility Agent or receipt by the Facility Agent of such notice, as applicable, or if the Borrower otherwise requests, the Facility Agent and the Borrower may amend this Agreement to replace the LIBO Rate with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBO Successor Rate”), and also together with any proposed LIBO Successor Rate Conforming Changes (as defined below) and any such amendment shall become effective at 5:00 P.M. (London time) on the fifth (5) Business Day after the Facility Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Facility Agent written notice that such Required Lenders do not accept such amendment. Such LIBO Successor Rate shall be applied in a manner consistent with market practice;
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provided that to the extent such market practice is not administratively feasible for the Facility Agent, such LIBO Successor Rate shall be applied in a manner as otherwise reasonably determined by the Facility Agent.
If no LIBO Successor Rate has been determined and the circumstances under paragraph a) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Facility Agent will promptly notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to fund or maintain the relevant portion of the Loan at the LIBO Rate (to the extent of the affected part of the Loan or Interest Periods) shall be suspended. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of any part of the Loan (to the extent of the affected part of the Loan or Interest Periods).
Notwithstanding anything else herein, any definition of LIBO Successor Rate shall provide that in no event shall such LIBO Successor Rate be less than zero for purposes of this Agreement.
The Facility Agent (acting on the instructions of the Required Lenders) and the Borrower shall, during the period between 1 April 2021 and 30 June 2022 (or such later date as may be agreed between the Required Lenders and the Borrower), enter into negotiations in good faith with a view to agreeing a basis upon which a LIBO Successor Rate can be used in replacement of the LIBO Rate, together with any associated LIBO Successor Rate Conforming Changes, and a timetable for the implementation of these changes so that the appropriate changes can be made prior to the Scheduled Unavailability Date.
For the purposes of this Agreement, “LIBO Successor Rate Conforming Changes” means, with respect to any proposed LIBO Successor Rate, any conforming changes to the definition of Floating Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Facility Agent in consultation with the Borrower, to reflect the adoption of such LIBO Successor Rate and to permit the administration thereof by the Facility Agent in a manner substantially consistent with market practice (or, if the Facility Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBO Successor Rate exists, in such other manner of administration as the Facility Agent determines is reasonably necessary in connection with the administration of this Agreement).
Section 3.4.    COMMITMENT FEES. Subject to clause 10.1 of the Novation Agreement, the Borrower agrees to pay to the Facility Agent for the account of each Lender a commitment fee (the “Commitment Fee”) on its daily unused portion of Maximum Loan Amount (as such amount may be adjusted from time to time), for the period commencing on the Signing Date and continuing through the earliest to occur (the “Commitment Fee Termination Date”) of (i) the Actual Delivery Date, (ii) the date upon which the Facility Agent has provided the Borrower with written notice that the Lenders will not advance the Loan because the Commitments have been terminated pursuant to Section 8.2 or 8.3, (iii) the Commitment Termination Date and (iv) the date the Commitments shall have been terminated in full pursuant to clause 10.2 of the Novation Agreement.
Section 3.4.1.    Payment. The Commitment Fee shall be payable by the Borrower to the Facility Agent for the account of each Lender six-monthly in arrears, with the first such
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payment (the “First Commitment Fee Payment”) to be made on the day falling six months following the Signing Date and the final such payment to be made on the Commitment Fee Termination Date (each date on which a Commitment Fee payment is required to be made in accordance with this Section 3.4.1 referred to herein as a “Commitment Fee Payment Date”). The Commitment Fee shall be in the amount in EUR equal to the product of the Applicable Commitment Rate, multiplied by, for each day elapsed since the preceding Commitment Fee Payment Date (or, in the case of the First Commitment Fee Payment, the Signing Date), 75% of the daily unused portion of Maximum Loan Amount (as such amount may be adjusted from time to time), divided by 360 days.
Section 3.5.    OTHER FEES. The Borrower agrees to pay to the Facility Agent the agreed-upon fees set forth in the Fee Letters on the dates and in the amounts set forth therein.
ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS
Section 4.1.    LIBO RATE LENDING UNLAWFUL. If after the Signing Date the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other governmental authority having jurisdiction over such Lender asserts that it is unlawful for such Lender to make, continue or maintain its portion of the Loan where the relevant Lender has funded itself in the interbank market at a rate based on the LIBO Rate, the obligation of such Lender to make, continue or maintain its portion of the Loan shall, upon notice thereof to the Borrower, the Facility Agent and each other Lender, forthwith be suspended until the circumstances causing such suspension no longer exist, provided that such Lender’s obligation to make, continue and maintain its portion of the Loan hereunder shall be automatically converted into an obligation to make, continue and maintain its portion of the Loan bearing interest at a rate to be negotiated between such Lender and the Borrower that is the equivalent of the sum of the LIBO Rate for the relevant Interest Period plus the Floating Rate Margin.
Section 4.2.    DEPOSITS UNAVAILABLE. If any Lender has funded itself in the interbank market and the Facility Agent shall have determined that:
a)    Dollar deposits in the relevant amount and for the relevant Interest Period are not available to each Reference Bank in its relevant market, or
b)    by reason of circumstances affecting the Reference Banks’ relevant markets, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate loans for the relevant Interest Period, or
c)    the cost to Lenders that in the aggregate hold more than 50% of the aggregate outstanding principal amount of the Loan then held by Lenders of obtaining matching deposits in the relevant interbank market for the relevant Interest Period would be in excess of the LIBO Rate, (provided, that no Lender may exercise its rights under this Section 4.2.c) for amounts up to the difference between such Lender’s cost of obtaining matching deposits on the date such Lender becomes a Lender hereunder less the LIBO Rate on such date), then the Facility Agent shall give notice of such determination (hereinafter called a “Determination Notice”) to the Borrower and each of the Lenders. The Borrower,
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the Lenders and the Facility Agent shall then negotiate in good faith in order to agree upon a mutually satisfactory interest rate and interest period (or interest periods) to be substituted for those which would otherwise have applied under this Agreement. If the Borrower, the Lenders and the Facility Agent are unable to agree upon an interest rate (or rates) and interest period (or interest periods) prior to the date occurring fifteen (15) Business Days after the giving of such Determination Notice, the Facility Agent shall (after consultation with the Lenders) set an interest rate and an interest period (or interest periods), in each case to take effect at the end of the Interest Period current at the date of the Determination Notice, which rate (or rates) shall be equal to the sum of the Floating Rate Margin and the weighted average of the corresponding interest rates at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period on Thomson Reuters’ pages KLIEMMM, GARBIC01 and FINA01 (or such other pages as may replace Thomson Reuters’ pages KLIEMMM, GARBIC01 or FINA01 on Thomson Reuters’ service) (or, in the case of clause (c) above, the lesser of (x) the respective cost to the Lenders of funding the respective portions of the Loan held by the Lenders and (y) such weighted average). The Facility Agent shall furnish a certificate to the Borrower as soon as reasonably practicable after the Facility Agent has given such Determination Notice setting forth such rate(s). In the event that the circumstances described in this Section 4.2 shall extend beyond the end of an interest period agreed or set pursuant hereto, the foregoing procedure shall be repeated as often as may be necessary.
Section 4.3.    INCREASED LIBO RATE LOAN COSTS, ETC. If after the Signing Date a change in any applicable treaty, law, regulation or regulatory requirement or in the interpretation thereof or in its application to the Borrower, or if compliance by any Lender with any applicable direction, request, requirement or guideline (whether or not having the force of law) of any governmental or other authority including, without limitation, any agency of the European Union or similar monetary or multinational authority insofar as it may be changed or imposed after the date hereof, shall:
a)    subject any Lender to any taxes, levies, duties, charges, fees, deductions or withholdings of any nature with respect to its portion of the Loan or any part thereof imposed, levied, collected, withheld or assessed by any jurisdiction or any political subdivision or taxing authority thereof (other than taxation on overall net income and, to the extent such taxes are described in Section 4.6, withholding taxes); or
b)    change the basis of taxation to any Lender (other than a change in taxation on the overall net income of any Lender) of payments of principal or interest or any other payment due or to become due pursuant to this Agreement; or
c)    impose, modify or deem applicable any reserve or capital adequacy requirements (other than the increased capital costs described in Section 4.5 and the reserve costs described in Section 4.7) or other banking or monetary controls or requirements which affect the manner in which a Lender shall allocate its capital resources to its obligations hereunder or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender (provided that such Lender shall, unless prohibited by law, allocate its capital resources to
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its obligations hereunder in a manner which is consistent with its present treatment of the allocation of its capital resources); or
d)    impose on any Lender any other condition affecting its portion of the Loan or any part thereof, and the result of any of the foregoing is either (i) to increase the cost to such Lender of making its portion of the Loan or maintaining its portion of the Loan or any part thereof, (ii) to reduce the amount of any payment received by such Lender or its effective return hereunder or on its capital or (iii) to cause such Lender to make any payment or to forego any return based on any amount received or receivable by such Lender hereunder, then and in any such case if such increase or reduction in the opinion of such Lender materially affects the interests of such Lender, (A) such Lender shall (through the Facility Agent) notify the Borrower of the occurrence of such event and use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to designate a different Lending Office if the making of such a designation would avoid the effects of such law, regulation or regulatory requirement or any change therein or in the interpretation thereof and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (B) the Borrower shall forthwith upon such demand pay to the Facility Agent for the account of such Lender such amount as is necessary to compensate such Lender for such additional cost or such reduction and ancillary expenses, including taxes, incurred as a result of such adjustment. Such notice shall (i) describe in reasonable detail the event leading to such additional cost, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such additional cost, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such 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. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstance giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such cost or reductions and of such Lender’s intention to claim compensation therefor.
It is acknowledged that the Borrower shall have no liability to compensate any Lender under this Section for amounts of increased costs that accrue before the Effective Time on the Actual Delivery Date (with any such amounts arising before the Effective Time being the responsibility of the Original Borrower).
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Section 4.4.    FUNDING LOSSES.
Section 4.4.1.    Indemnity. In the event any Lender shall incur any loss or expense (for the avoidance of doubt excluding loss of profit) by reason of the liquidation or re-employment (at not less than the market rate) of deposits or other funds acquired by such Lender, to make, continue or maintain any portion of the principal amount of its portion of the Loan as a result of:
i)    any repayment or prepayment or acceleration of the principal amount of such Lender’s portion of the Loan, other than any repayment made on the date scheduled for such repayment or (if the Floating Rate applies) any repayment or prepayment or acceleration on a date other than the scheduled last day of an Interest Period or otherwise scheduled date for repayment or payment; or
ii)    the relevant portion of the Loan not being made in accordance with the Loan Request therefor due to the fault of the Borrower or as a result of any of the conditions precedent set forth in clause 6.1(c) of the Novation Agreement and Article V not being satisfied,
(a “Funding Losses Event”) then, upon the written notice of such Lender to the Borrower (with a copy to the Facility Agent), the Borrower shall, within three (3) days of its receipt thereof:
a)    if at that time interest is calculated at the Floating Rate on such Lender’s portion of the Loan, pay directly to the Facility Agent for the account of such Lender an amount equal to the amount by which:
i)    interest calculated at the Floating Rate (excluding the Floating Rate Margin) which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event for the period from the date of receipt of any part of its share in the Loan to the last day of the applicable Interest Period,
exceeds:
ii)    the amount which such Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Interest Period; or
b)    if at that time interest is calculated at the Fixed Rate on such Lender’s portion of the Loan, pay to the Facility Agent the amount notified to it following the calculation referred to in the next paragraph.
Since the Lenders commit themselves irrevocably to the French Authorities in charge of monitoring the CIRR mechanism, any prepayment (whether voluntary, involuntary or mandatory, including following the acceleration of the Loan) will be subject to the mandatory payment by the Borrower of the amount calculated in liaison with the French Authorities two (2) Business Days prior to the prepayment date by taking into account the differential (the “Rate Differential”) between the CIRR and the prevailing market yield
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(currently ISDAFIX) for each installment to be prepaid and applying such Rate Differential to the remaining residual period of such installment and discounting to the net present value as described below. Each of these Rate Differentials will be applied to the corresponding installment to be prepaid during the period starting on the date on which such prepayment is required to be made and ending on the original Repayment Date (as adjusted following any previous prepayments) for such installment and:
(A)    the net present value of each corresponding amount resulting from the above calculation will be determined at the corresponding market yield; and
(B)    if the cumulated amount of such present values is negative, no amount shall be due to the Borrower or from the Borrower.
Such written notice shall include calculations in reasonable detail setting forth the loss or expense to such Lender.
Section 4.4.2.    Exclusion. In the event that a Lender’s wilful misconduct or gross negligence has caused the loss or cancellation of the BpiFAE Insurance Policy, the Borrower shall not be liable to indemnify that Lender under Section 4.4.1 for its loss or expense arising due to the occurrence of the Prepayment Event referred to in Section 9.1.9.
Section 4.5.    INCREASED CAPITAL COSTS. If after the Signing Date any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority increases the amount of capital required to be maintained by any Lender or any Person controlling such Lender, and the rate of return on its or such controlling Person’s capital as a consequence of its Commitment or its portion of the Loan made by such Lender is reduced to a level below that which such Lender or such controlling Person would have achieved but for the occurrence of any such change in circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, the Borrower shall immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. Any such notice shall (i) describe in reasonable detail the capital adequacy requirements which have been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such lowered return, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such 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 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to designate a different Lending Office if the making of such a designation would avoid such reduction in such rate of return and would not, in the reasonable judgment of
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such Lender, be otherwise disadvantageous to such Lender. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstance giving rise to such reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender’s intention to claim compensation therefor.
It is acknowledged that the Borrower shall have no liability to compensate any Lender under this Section for reduced returns that accrue before the Effective Time on the Actual Delivery Date (with any compensation liability to the Lenders arising before the Effective Time being the responsibility of the Original Borrower).
Section 4.6.    TAXES. All payments by any Obligor of principal of, and interest on, the Loan and all other amounts payable under any Loan Document shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes imposed on or measured by any Lender’s net income or receipts of such Lender and franchise taxes imposed in lieu of net income taxes or taxes on receipts, by the jurisdiction under the laws of which such Lender is organized or any political subdivision thereof or the jurisdiction of such Lender’s Lending Office or any political subdivision thereof or any other jurisdiction unless such net income taxes are imposed solely as a result of the applicable Obligor’s activities in such other jurisdiction, and any taxes imposed under FATCA (such non-excluded items being called “Covered Taxes”). In the event that any withholding or deduction from any payment to be made by an Obligor under any Loan Document is required in respect of any Covered Taxes pursuant to any applicable law, rule or regulation, then the Borrower will:
a)    pay directly to the relevant authority the full amount required to be so withheld or deducted;
b)    promptly forward to the Facility Agent an official receipt or other documentation satisfactory to the Facility Agent evidencing such payment to such authority; and
c)    pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
Moreover, if any Covered Taxes are directly asserted against the Facility Agent or any Lender with respect to any payment received or paid by the Facility Agent or such Lender hereunder, the Facility Agent or such Lender may pay such Covered Taxes and the Borrower will
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promptly pay such additional amounts (including any penalties, interest or expenses) as is necessary in order that the net amount received by such person after the payment of such Covered Taxes (including any Covered Taxes on such additional amount) shall equal the amount such person would have received had no such Covered Taxes been asserted.
Any Lender claiming any additional amounts payable pursuant to this Section agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to change the jurisdiction of its Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
If the Borrower fails to pay any Covered Taxes when due to the appropriate taxing authority or fails to remit to the Facility Agent for the account of the respective Lenders the required receipts or other required documentary evidence, the Borrower shall indemnify the Lenders for any incremental withholding Covered Taxes, interest or penalties that may become payable by any Lender as a result of any such failure (so long as such amount did not become payable as a result of the failure of such Lender to provide timely notice to the Borrower of the assertion of a liability related to the payment of Covered Taxes). For purposes of this Section 4.6, a distribution hereunder by the Facility Agent or any Lender to or for the account of any Lender shall be deemed a payment by the Borrower.
If any Lender is entitled to any refund, credit, deduction or other reduction in tax by reason of any payment made by the Borrower in respect of any Covered Tax under this Section 4.6 or by reason of any payment made by the Borrower pursuant to Section 4.3, such Lender shall use reasonable efforts to obtain such refund, credit, deduction or other reduction and, promptly after receipt thereof, will pay to the Borrower such amount (plus any interest received by such Lender in connection with such refund, credit, deduction or reduction) as is equal to the net after-tax value to such Lender of such part of such refund, credit, deduction or reduction as such Lender reasonably determines is allocable to such Covered Tax or such payment (less out-of-pocket expenses incurred by such Lender), provided that no Lender shall be obligated to disclose to the Borrower any information regarding its tax affairs or tax computations.
Each Lender (and each Participant) agrees with the Borrower and the Facility Agent that it will (i) in the case of a Lender or a Participant organized under the laws of a jurisdiction other than the United States (a) provide to the Facility Agent and the Borrower an appropriately executed copy of Internal Revenue Service Form W-8ECI certifying that any payments made to or for the benefit of such Lender or such Participant are effectively connected with a trade or business in the United States (or alternatively, an Internal Revenue Service Form W-8BEN claiming the benefits of a tax treaty, but only if the applicable treaty described in such form provides for a complete exemption from U.S. federal income tax withholding), or any successor form, on or prior to the date hereof (or, in the case of any Assignee Lender or Participant, on or prior to the date of the relevant assignment or participation), in each case attached to an Internal Revenue Service Form W-8IMY, if appropriate, (b) notify the Facility Agent and the Borrower if the certifications made on any form provided pursuant to this paragraph are no longer accurate and true in all material respects and (c) without prejudice to its obligations under Section 4.13, provide such other tax
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forms or other documents as shall be prescribed by applicable law, if any, or as otherwise reasonably requested, to demonstrate, to the extent applicable, that payments to such Lender Party (or Participant) hereunder are exempt from withholding under FATCA, and (ii) in all cases, provide such forms, certificates or other documents, as and when reasonably requested by the Borrower, necessary to claim any applicable exemption from, or reduction of, Covered Taxes or any payments made to or for benefit of such Lender Party or such Participant, provided that the Lender Party or Participant is legally able to deliver such forms, certificates or other documents. For any period with respect to which a Lender (or Assignee Lender or Participant) has failed to provide the Borrower with the foregoing forms (other than if such failure is due to a change in law occurring after the date on which a form originally was required to be provided (which, in the case of an Assignee Lender, would be the date on which the original assignor was required to provide such form) or if such form otherwise is not required hereunder) such Lender (or Assignee Lender or Participant) shall not be entitled to the benefits of this Section 4.6 with respect to Covered Taxes imposed by reason of such failure.
All fees and expenses payable pursuant to Section 11.3 shall be paid together with value added tax or any similar tax (if any) properly chargeable thereon. Any value added tax chargeable in respect of any services supplied by a Lender or an Agent under this Agreement shall, on delivery of the value added tax invoice, be paid in addition to any sum agreed to be paid hereunder.
Section 4.7.    RESERVE COSTS. Without in any way limiting the Borrower’s obligations under Section 4.3, the Borrower shall, with effect from the Effective Time, pay to the Facility Agent for the account of each Lender on the last day of each Interest Period, so long as the relevant Lending Office of such Lender is required to maintain reserves against “Eurocurrency liabilities” under Regulation D of the F.R.S. Board, upon notice from such Lender, an additional amount equal to the product of the following for the Loan for each day during such Interest Period:
i)    the principal amount of the Loan outstanding on such day; and
ii)    the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on the Loan for such Interest Period as provided in this Agreement (less, if applicable, the Floating Rate Margin) and the denominator of which is one minus any increase after the Signing Date in the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender minus (y) such numerator; and
iii)    1/360.
Such notice shall (i) describe in reasonable detail the reserve requirement that has been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the applicable reserve percentage, (iii) certify that such request is consistent with such 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.
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Each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to avoid the requirement of maintaining such reserves (including by designating a different Lending Office) if such efforts would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
Section 4.8.    PAYMENTS, COMPUTATIONS, ETC.
a)    Unless otherwise expressly provided, all payments by an Obligor pursuant to any Loan Document shall be made by such Obligor to the Facility Agent for the pro rata account of the Lenders entitled to receive such payment. All such payments required to be made to the Facility Agent shall be made, without set-off, deduction or counterclaim, not later than 11:00 a.m., New York time, on the date due, in same day or immediately available funds through the New York Clearing House Interbank Payments System (or such other funds as may be customary for the settlement of international banking transactions in Dollars), to such account as the Facility Agent shall specify from time to time by notice to the Borrower. Funds received after that time shall be deemed to have been received by the Lenders on the next succeeding Business Day.
b)    Each Lender hereby instructs the Facility Agent, with respect to any portion of the Loan held by such Lender, to pay directly to such Lender interest thereon at the Fixed Rate or (if the proviso to Section 5.1.10 applies) the Floating Rate, on the basis that (if the Fixed Rate applies) such Lender will, where amounts are payable to Natixis by that Lender under the Interest Stabilisation Agreement, account directly to Natixis for any such amounts payable by that Lender under the Interest Stabilisation Agreement to which such Lender is a party.
c)    The Facility Agent shall promptly (but in any event on the same Business Day that the same are received or, as contemplated in clause (a) of this Section, deemed received) remit in same day funds to each Lender its share, if any, of such payments received by the Facility Agent for the account of such Lender without any set-off, deduction or counterclaim. All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days. Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing interest and fees, if any, in connection with such payment.
Section 4.9.    REPLACEMENT LENDERS, ETC. If the Borrower shall be required to make any payment to any Lender pursuant to Section 4.2(c), 4.3, 4.4, 4.5, 4.6 or 4.7, the Borrower shall be entitled at any time (so long as no Default and no Prepayment Event shall have occurred and be continuing) within 180 days after receipt of notice from such Lender of such required payment to (a) terminate such Lender’s Commitment (where upon the Percentage of each other Lender shall automatically be adjusted to an amount equal to such Lender’s ratable share of the remaining Commitments), (b) prepay the affected portion of such Lender’s Loan in full, together
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with accrued interest thereon through the date of such prepayment (provided that the Borrower shall not terminate any Lender’s Commitment pursuant to clause (a) or prepay any such Lender pursuant to this clause (b) without replacing such Lender pursuant to the following clause (c) until a 30-day period shall have elapsed during which the Borrower and the Facility Agent shall have attempted in good faith to replace such Lender), and/or (c) replace such Lender with another financial institution reasonably acceptable to the Facility Agent and (if the Fixed Rate applies) Natixis DAI, provided that (i) each such transfer shall be either a transfer of all of the rights and obligations of the transferring Lender under this Agreement or a transfer of a portion of such rights and obligations made concurrently with another such transfer or other such transfers that together cover all of the rights and obligations of the transferring Lender under this Agreement and (ii) no Lender shall be obligated to make any such transfer as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from either the Borrower or one or more Assignee Lenders in an aggregate amount at least equal to the aggregate outstanding principal amount of the Loan owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement. Each Lender represents and warrants to the Borrower that, as of the Signing Date (or, with respect to any Lender not a party hereto on the Signing Date, on the date that such Lender becomes a party hereto), there is no existing treaty, law, regulation, regulatory requirement, interpretation, directive, guideline, decision or request pursuant to which such Lender would be entitled to request any payments under any of Sections 4.3, 4.4, 4.5, 4.6 and 4.7 to or for account of such Lender.
Section 4.10.    SHARING OF PAYMENTS.
Section 4.10.1.    Payments to Lenders. If a Lender (a “Recovering Lender”) receives or recovers any amount from an Obligor other than in accordance with Section 4.8 (Payments, Computations, etc.) (a “Recovered Amount”) and applies that amount to a payment due under the Loan Documents then:
a)    the Recovering Lender shall, within three (3) Business Days, notify details of the receipt or recovery to the Facility Agent;
b)    the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Lender would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with the said Section 4.8, without taking account of any taxes which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
c)    the Recovering Lender shall, within three (3) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Lender as its share of any payment to be made, in accordance with any applicable provisions of this Agreement.
Section 4.10.2.    Redistribution of payments. The Facility Agent shall treat the Sharing Payment as if it had been paid by the Borrower and distribute it between the Lenders
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(other than the Recovering Lender) (the “Sharing Lenders”) in accordance with the provisions of this Agreement towards the obligations of the Borrower to the Sharing Lenders.
Section 4.10.3.    Recovering Lender’s rights. On a distribution by the Facility Agent under Section 4.10.2 of a payment received by a Recovering Lender from the relevant Obligor, as between that Obligor and the Recovering Lender, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by the relevant Obligor.
Section 4.10.4.    Reversal of redistribution. If any part of the Sharing Payment received or recovered by a Recovering Lender becomes repayable and is repaid by that Recovering Lender, then:
a)    each Sharing Lender shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Lender an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Sharing Payment which that Recovering Lender is required to pay) (the “Redistributed Amount”); and
b)    as between the relevant Obligor and each relevant Sharing Lender, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by the relevant Obligor.
Section 4.10.5.    Exceptions.
a)    This Section 4.10 shall not apply to the extent that the Recovering Lender would not, after making any payment pursuant to this Section 4.10, have a valid and enforceable claim against the relevant Obligor.
b)    A Recovering Lender is not obliged to share with any other Lender any amount which the Recovering Lender has received or recovered as a result of taking legal or arbitration proceedings, if:
i)    it notified the other Lender of the legal or arbitration proceedings; and
ii)    the other Lender had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
Section 4.11.    SET-OFF. Upon the occurrence and during the continuance of an Event of Default or a Prepayment Event, each Lender shall have, to the extent permitted by applicable law, the right to appropriate and apply to the payment of the Obligations then due and owing to it any and all balances, credits, deposits, accounts or moneys of any Obligor 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 applicable Obligor and the Facility Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of
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each Lender under this Section are in addition to other rights and remedies (including other rights of set-off under applicable law or otherwise) which such Lender may have.
Section 4.12.    USE OF PROCEEDS. The Borrower shall apply the proceeds of the Loan made available to the Borrower in respect of the Additional Advances for the purpose of making payments of, or reimbursing the Borrower for payments already made for, the amounts referred to in clauses 5.2, 5.3 and/or 5.4 of the Novation Agreement and, without limiting the foregoing, no proceeds of the Loan will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or any “margin stock”, as defined in F.R.S. Board Regulation U.
Section 4.13.    FATCA INFORMATION.
a)    Subject to paragraph c) below, each party (other than the Borrower) shall, within ten Business Days of a reasonable request by another party (other than the Borrower):
i)    confirm to that other party whether it is:
(A)    a FATCA Exempt Party; or
(B)    not a FATCA Exempt Party;
ii)    supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other party’s compliance with FATCA;
iii)    supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other party’s compliance with any other law, regulation, or exchange of information regime.
b)    If a party confirms to another party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.
c)    Paragraph a) above shall not oblige any Lender or the Facility Agent to do anything, and paragraph a)(iii) above shall not oblige any other party to do anything, which would or might in its reasonable opinion constitute a breach of:
i)    any law or regulation;
ii)    any fiduciary duty; or
iii)    any duty of confidentiality.
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d)    If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such party shall be treated for the purposes of the Loan Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.
e)    Each party may make a FATCA Deduction from a payment under this Agreement that it is required to be made by FATCA, and any payment required in connection with that FATCA Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
Section 4.14.    RESIGNATION OF THE FACILITY AGENT. The Facility Agent shall resign (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent) if, either:
a)    the Facility Agent fails to respond to a request under Section 4.13 and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
b)    the information supplied by the Facility Agent pursuant to Section 4.13 indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party; or
c)    the Facility Agent notifies the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
and (in each case) a Lender reasonably believes that a party to this Agreement will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and that Lender, by notice to the Facility Agent, requires it to resign.
ARTICLE V

CONDITIONS TO BORROWING
Section 5.1.    ADVANCE OF THE LOAN. The obligation of the Lenders to fund the relevant portion of the Loan to be made available on the Actual Delivery Date shall be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in this Section 5.1. The Facility Agent shall advise the Lenders of the satisfaction of the conditions precedent set forth in this Section 5.1 prior to funding on the Actual Delivery Date.
Section 5.1.1.    Resolutions, etc. The Facility Agent shall have received from the Borrower:
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a)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorized to act with respect to this Agreement and each other Loan Document and as to the truth and completeness of the attached:
(x)     resolutions of its Board of Directors then in full force and effect authorizing the execution, delivery and performance of this Agreement and each other Loan Document, and
(y)     Organic Documents of the Borrower,
and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the Borrower canceling or amending such prior certificate; and
b)    a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the Borrower.
Section 5.1.2.    Opinions of Counsel. The Facility Agent shall have received opinions, addressed to the Facility Agent, the Security Trustee (in relation to a) and b) below) and each Lender from:
a)    Watson Farley & Williams LLP, counsel to the Borrower, as to Liberian Law, covering the matters set forth in Exhibit B-1 hereto (and which shall be updated to include reference to the Escrow Account Security);
b)    Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders, covering the matters set forth in Exhibit B-2 hereto (and which shall be updated to include reference to the Escrow Account Security) and, if the BpiFAE Insurance Policy is to be re-issued or replaced on or about the Actual Delivery Date, Exhibit B-3 hereto; and
c)    Clifford Chance US LLP, United States tax counsel to the Facility Agent for the benefit of the Lenders, covering the matters set forth in Exhibit B-4 hereto, each such opinion to be updated to take into account all relevant and applicable Loan Documents at the time of issue thereof.
Section 5.1.3.    BpiFAE Insurance Policy. The Facility Agent or the ECA Agent shall have received the BpiFAE Insurance Policy duly issued and BpiFAE shall not have, prior to the advance of the Loan, delivered to the Facility Agent or the ECA Agent any notice seeking the cancellation, suspension or termination of the BpiFAE Insurance Policy or the suspension of the drawing of the Additional Advances under this Agreement.
Section 5.1.4.    Closing Fees, Expenses, etc. The Facility Agent shall have received for its own account, or for the account of each Lender or BpiFAE, as the case may be, all fees that the Borrower shall have agreed in writing to pay to the Facility Agent (whether for its own account or for the account of any of the Lenders) that are due and owing as of the date of such funding and all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent and the BpiFAE Premium) required to be paid by the Borrower pursuant to
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Section 11.3 or that the Borrower has otherwise agreed in writing to pay to the Facility Agent, in each case on or prior to the date of such funding.
Section 5.1.5.    Compliance with Warranties, No Default, etc. Both before and after giving effect to the funding of the Loan the following statements shall be true and correct:
a)    the representations and warranties set forth in Article VI (excluding, however, those set forth in Section 6.10) shall be true and correct in all material respects except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, with the same effect as if then made; and
b)    no Default and no Prepayment Event and no event which (with notice or lapse of time or both) would become a Prepayment Event shall have then occurred and be continuing.
Section 5.1.6.    Loan Request. The Facility Agent shall have received a Loan Request duly executed by the Borrower together with:
a)    where an Additional Advance is requested in respect of the Non-Yard Costs, the Delivery Non-Yard Costs Certificate;
b)    certified as true (by the Builder) copies of the invoice and supporting documents received by the Builder from the Borrower pursuant to Appendix C of the Construction Contract in relation to the Paid Non-Yard Costs to be financed as at the time of issue and a declaration from the Borrower in substantially the form set forth in Exhibit D hereto that the requirements for a minimum 15% French content in respect of Non-Yard Costs have been fulfilled;
c)    a copy of the final commercial invoice from the Builder showing the amount of the Contract Price (including the Non-Yard Costs and the Other Basic Contract Price Increases) and the portion thereof payable to the Builder on the Actual Delivery Date under the Construction Contract; and
d)    copies of the wire transfers for all payments by the Borrower to the Builder under the Construction Contract in respect of the Basic Contract Price to the extent not already provided as part of the drawdown conditions for drawdowns made by the Original Borrower.
Section 5.1.7.    Foreign Exchange Counterparty Confirmations. The Facility Agent shall have received the documentation and other information referred to in clause 5.6 of the Novation Agreement.
Section 5.1.8.    Protocol of delivery. The Facility Agent shall have received a copy of the protocol of delivery and acceptance under the Construction Contract duly signed by the Builder and the Borrower or the Nominated Owner to be notified to the Facility Agent.
Section 5.1.9.    Title to Purchased Vessel. The Facility Agent shall have received evidence that the Purchased Vessel is legally and beneficially owned by the Borrower or the Nominated Owner (as the case may be), free of all recorded Liens, other than Liens permitted by
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Section 7.2.3 and, to the extent not yet discharged, the Mortgage (as defined in the Novation Agreement).
Section 5.1.10.    Interest Stabilisation. The ECA Agent shall have received a duly executed fixed rate approval from Natixis DAI issued to the Lenders in respect of the CIRR applicable to the Loan and shall have been informed by the French Authorities of the conditions of the interest make-up mechanisms (stabilisation du taux d’intérêt) applicable to the Loan under the applicable Interest Stabilisation Agreement in respect of the Lenders, such conditions to specify, among other things, that the CIRR has been retained under the interest make-up mechanisms applicable to the Loan.
In relation to Section 5.1.10, if a Lender (an “Ineligible Lender”) becomes ineligible or otherwise ceases to be a party to an Interest Stabilisation Agreement, it shall promptly upon becoming aware thereof (and by no later than 15 Business Days before the anticipated Actual Delivery Date) notify the Borrower, the ECA Agent and the Facility Agent.
Following receipt of such a notice, the ECA Agent (through the Facility Agent) shall give to the Borrower at least 10 Business Days’ prior notice stating if the condition precedent in Section 5.1.10 will not be satisfied due to the Ineligible Lender but would be satisfied by the replacement of the Ineligible Lender as set out below, with such replacement to take effect for the purpose of this Section on the Actual Delivery Date.
On its receipt of such notice from the ECA Agent, the Borrower shall be entitled, at any time thereafter and without prejudice to any rights and remedies it may have against such Ineligible Lender pursuant to Section 3.3.3, to replace such Ineligible Lender with another bank or financial institution reasonably acceptable to the Facility Agent, BpiFAE and Natixis DAI with effect from the Actual Delivery Date, provided that (i) each such transfer shall be either a transfer of all of the rights and obligations of the Ineligible Lender under this Agreement or a transfer of a portion of such rights and obligations made concurrently with another such transfer or other such transfers that together cover all of the rights and obligations of the Ineligible Lender under this Agreement and (ii) no Lender shall be obligated to make effective any such transfer as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from one or more Assignee Lenders in an aggregate amount equal to the aggregate outstanding principal amount of the portion of the Novated Loan Balance which, immediately following the Effective Time, would have been owing to such Lender pursuant to Section 2.3(a) had that Lender not been replaced prior to the Effective Time. The ECA Agent and the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Ineligible Lender, and taking such other steps that may be reasonably required and which are within the control of the ECA Agent and the Facility Agent to assist with the satisfaction of the condition precedent in Section 5.1.10 prior to funding on the Actual Delivery Date.
Provided however the Borrower shall be entitled, without prejudice to its rights and remedies pursuant to Section 3.3.3, to elect that if at the Actual Delivery Date the condition precedent in Section 5.1.10 is not satisfied the Floating Rate should apply to the Loan, such election to be made by notice in writing to the Facility Agent not less than five (5) Business Days prior to the anticipated Actual Delivery Date in which event, subject to the approval of BpiFAE,
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the Loan shall bear interest at the Floating Rate and the condition set out in Section 5.1.10 shall be deemed waived by the Lenders.
The ECA Agent (through the Facility Agent) shall, promptly after the Borrower’s request, advise the Borrower whether it is aware (based solely on information obtained from Natixis DAI and other French Authorities and/or received from the Lenders at the time of any such request and without any liability on the ECA Agent for the accuracy of that information) that the condition precedent in Section 5.1.10 will not or may not be satisfied as required by Section 5.1.10.
Section 5.1.11.    Escrow Account Security. The Facility Agent shall have received the Escrow Account Security duly executed by the Borrower together with a duly executed notice of charge and acknowledgement thereto executed by the Borrower and the Escrow Account Bank respectively.
ARTICLE VI

REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Facility Agent to enter into this Agreement and to make the Loan hereunder, the Borrower represents and warrants to the Facility Agent and each Lender as set forth in this Article VI as of the Actual Delivery Date and on the Guarantee Release Date (in each case except as otherwise stated).
Section 6.1.    ORGANIZATION, ETC. The Borrower is a corporation validly organized and existing and in good standing under the laws of its jurisdiction of incorporation; the Borrower is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the nature of its business requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect; and the Borrower has full power and authority, has taken all corporate action and holds all governmental and creditors’ licenses, permits, consents and other approvals necessary to enter into each Loan Document to which it is a party 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 except as would not reasonably be expected to result in a Material Adverse Effect;
c)    contravene any court decree or order binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect;
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d)    contravene any contractual restriction binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect; or
e)    result in, or require the creation or imposition of, any Lien on any of the Borrower’s properties except as would not reasonably be expected to result in a Material Adverse Effect.
Section 6.3.    GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or other Person is required for the due execution, delivery or performance by the Borrower of this Agreement or any other Loan Document (except for authorizations or approvals not required to be obtained on or prior to the Actual Delivery Date or that have been obtained or actions not required to be taken on or prior to the Actual Delivery Date or that have been taken). The Borrower holds all governmental licenses, permits and other approvals required to conduct its business as conducted by it on the Actual Delivery Date, except to the extent the failure to hold any such licenses, permits or other approvals would not have a Material Adverse Effect.
Section 6.4.    COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower is in compliance with all applicable Environmental Laws, except to the extent that the failure to so comply would not have a Material Adverse Effect.
Section 6.5.    VALIDITY, ETC. This Agreement constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles.
Section 6.6.    NO DEFAULT, EVENT OF DEFAULT OR PREPAYMENT EVENT.
No Default, Event of Default or Prepayment Event has occurred and is continuing.
Section 6.7.    LITIGATION. There is no action, suit, litigation, investigation or proceeding pending or, to the knowledge of the Borrower, threatened against the Borrower, that (i) except as set forth in filings made by the Borrower with the SEC in the Borrower’s reasonable opinion might reasonably be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries (taken as a whole) (collectively, “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation of the transactions contemplated hereby.
Section 6.8.    THE PURCHASED VESSEL. Immediately following the delivery of the Purchased Vessel to the Borrower under the Construction Contract, the Purchased Vessel will be:
a)    legally and beneficially owned by the Borrower or one of the Borrower’s wholly owned Subsidiaries,
b)    registered in the name of the Borrower or one of the Borrower’s wholly owned Subsidiaries under the Bahamian or Maltese flag or such other flag as the parties may mutually agree,
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c)    classed as required by Section 7.1.4(b),
d)    free of all recorded Liens, other than Liens permitted by Section 7.2.3,
e)    insured against loss or damage in compliance with Section 7.1.5, and
f)    exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries.
Section 6.9.    OBLIGATIONS RANK PARI PASSU; LIENS.
a)    The Obligations rank at least pari passu in right of payment and in all other respects with all other unsecured unsubordinated Indebtedness of the Borrower other than Indebtedness preferred as a matter of law.
b)    As at the date of this Agreement, the provisions of this Agreement which permit or restrict the granting of Liens are no less favorable than the provisions permitting or restricting the granting of Liens in any other agreement entered into by the Borrower with any other person providing financing or credit to the Borrower.
Section 6.10.    WITHHOLDING, ETC. . As of the Signing Date, no payment to be made by the Borrower under any Loan Document is subject to any withholding or like tax imposed by any Applicable Jurisdiction.
Section 6.11.    NO FILING, ETC. REQUIRED. No filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of any Applicable Jurisdiction to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Agreement or the other Loan Documents (except for filings, recordings, registrations or payments not required to be made on or prior to the Actual Delivery Date or that have been made).
Section 6.12.    NO IMMUNITY. The Borrower is subject to civil and commercial law with respect to the Obligations. Neither the Borrower nor any of its properties or revenues is entitled to any right of immunity in any Applicable Jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to the Obligations (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted or exist).
Section 6.13.    INVESTMENT COMPANY ACT. The Borrower is not required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 6.14.    REGULATION U. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of the Loan will be used for a purpose which violates, or would be inconsistent with, F.R.S. Board Regulation U. Terms for which meanings are provided in F.R.S. Board Regulation U or any
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regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
Section 6.15.    ACCURACY OF INFORMATION. The financial and other information (other than financial projections or other forward looking information) furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Borrower, true and correct and contains no misstatement of a fact of a material nature. All financial projections, if any, that have been furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with this Agreement have been or will be prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the projections will be realized). All financial and other information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Borrower in good faith.
Section 6.16.    COMPLIANCE WITH LAWS. The Borrower is in compliance with all applicable laws, rules, regulations and orders, except to the extent that the failure to so comply does not and could not reasonably be expected to have a Material Adverse Effect, and the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The Borrower and its Subsidiaries and, to the knowledge of the Borrower, their respective officers, employees, directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions, in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in Borrower being designated as a Sanctioned Person. None of (a) the Borrower, any Subsidiary or to the knowledge of the Borrower or such Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.
ARTICLE VII

COVENANTS
Section 7.1.    AFFIRMATIVE COVENANTS. The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date (or, where applicable, from such time as may be stated in any applicable provision below) until all Commitments have terminated and all Obligations have been paid in full, the Borrower will perform the obligations set forth in this Section 7.1.
Section 7.1.1.    Financial Information, Reports, Notices, etc. The Borrower will furnish, or will cause to be furnished, to the Facility Agent (with sufficient copies for distribution to each Lender) the following financial statements, reports, notices and information:
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a)    as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, a copy of the Borrower’s report on Form 10-Q (or any successor form) as filed by the Borrower with the SEC for such Fiscal Quarter, containing unaudited consolidated financial statements of the Borrower for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
b)    as soon as available and in any event within 120 days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s annual report on Form 10-K (or any successor form) as filed by the Borrower with the SEC for such Fiscal Year, containing audited consolidated financial statements of the Borrower for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLP or another firm of independent public accountants of similar standing;
c)    together with each of the statements delivered pursuant to the foregoing clause (a) or (b), a certificate, executed by the chief financial officer, the treasurer or the corporate controller of the Borrower, showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year compliance with the covenants set forth in Section 7.2.4 (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
d)    as soon as possible after the occurrence of a Default or Prepayment Event, a statement of the chief financial officer of the Borrower setting forth details of such Default or Prepayment Event (as the case may be) and the action which the Borrower has taken and proposes to take with respect thereto;
e)    as soon as the Borrower becomes aware thereof, notice of any Material Litigation except to the extent that such Material Litigation is disclosed by the Borrower in filings with the SEC;
f)    as soon as the Borrower becomes aware thereof, notice of any event which, in its reasonable opinion, would be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole;
g)    promptly after the sending or filing thereof, copies of all reports which the Borrower sends to all holders of each security issued by the Borrower, and all registration statements which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange;
h)    such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Facility Agent may from time to time reasonably request (including an update to any information and projections previously provided to the Lenders where these have been prepared and are available);
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i)    during the Financial Covenant Waiver Period, as soon as available and in any event within respectively five (5) Business Days, ten (10) and forty (40) days (or such other period as BpiFAE may require from time to time) after the end of each monthly, bi-monthly and quarterly period (save that the period in respect of the final quarter of each Fiscal Year shall be sixty (60) days) from the Fourth Supplement Effective Date, the information required by the Debt Deferral Extension Regular Monitoring Requirements (as such information requirements may be amended on the basis set out in the Debt Deferral Extension Regular Monitoring Requirements) (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
j)    during the Financial Covenant Waiver Period, upon the request of the Facility Agent (acting on the instructions of BpiFAE), the Borrower and the Lenders shall provide information in form and substance satisfactory to BpiFAE regarding arrangements in respect of Indebtedness for borrowed money of the Group then existing or any such Indebtedness to be incurred by or made available to (as the case may be) the Group pursuant to binding commitments (such information to be provided to BpiFAE in accordance with terms of the Facility Agent’s request);
k)    during the period from the Novation Effective Time until the Covenant Modification Date, within five Business Days after the end of each month falling during such period, 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 immediately preceding month, compliance with the covenant set forth in Section 7.2.4(C); provided that if, during such period, the Borrower is not in compliance with the covenant set forth in Section 7.2.4(C) as of the last day of such month, the Borrower shall show compliance with such covenant as of the date such certificate is delivered;
l)    within 15 Business Days of the end of each month throughout the Early Warning Monitoring Period, 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 month (i) the ratio of Adjusted Cash Balance as of the last day of the most recently completed month to the Monthly Outflow for the month most recently ended (and showing whether the Adjusted Cash Balance covers the Monthly Outflow for at least the subsequent five-month period), (ii) the Borrower’s Adjusted EBITDA After Principal and Interest for the two consecutive Last Reported Fiscal Quarters and (iii) in the case of the next certificate to be submitted immediately following the Borrower’s publishing of results for each Last Reported Fiscal Quarter, a comparison of Adjusted EBITDA After Principal and Interest with the figure from the corresponding Fiscal Quarter in the 2019 Fiscal Year (in each case in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
m)    on one occasion during each calendar year from the start of the Financial Covenant Waiver Period, the environmental plan of the Borrower (and including the Group’s carbon emissions for the past two years (calculated according to methodologies defined by the IMO or any other public methodology specified by the Borrower) as required to be published pursuant to each letter of the Borrower issued pursuant to the Fourth Novation Agreement Supplement;
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n)    if the Borrower intends to make a Restricted Voluntary Prepayment, not less than ten Business Days prior to the anticipated making of a Restricted Voluntary Prepayment, the Borrower shall provide written notice to the Facility Agent of that Restricted Voluntary Prepayment (which notice shall set out in reasonable detail the terms of that Restricted Voluntary Prepayment); and
o)    during the Financial Covenant Waiver Period, as soon as the Borrower becomes aware thereof, notice (with a copy to the ECA Agent and BpiFAE) of any matter that has, or may, result in a breach of section 7.1.10,
provided that information required to be furnished to the Facility Agent under subsections (a), (b), (g) and (m) of this Section 7.1.1 shall be deemed furnished to the Facility Agent when available free of charge on the Borrower’s website at http://www.rclinvestor.com or the SEC’s website at http://www.sec.gov.
Section 7.1.2.    Approvals and Other Consents. The Borrower will obtain (or cause to be obtained) all such governmental licenses, authorizations, consents, permits and approvals as may be required for (a) each Obligor to perform its obligations under the Loan Documents to which it is a party and (b) the operation of the Purchased Vessel in compliance with all applicable laws, except, in each case, to the extent that failure to obtain (or cause to be obtained) such governmental licenses, authorizations, consents, permits and approvals would not be expected to have a Material Adverse Effect.
Section 7.1.3.    Compliance with Laws, etc. The Borrower will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, except (other than as described in clauses (a) and (f) below) to the extent that the failure to so comply would not have a Material Adverse Effect, which compliance shall in any case include (but not be limited to):
a)    in the case of the Borrower, the maintenance and preservation of its corporate existence (subject to the provisions of Section 7.2.6);
b)    in the case of the Borrower, maintenance of its qualification as a foreign corporation in the State of Florida;
c)    the payment, before the same become delinquent, of all taxes, assessments and governmental charges imposed upon it or upon its property, except to the extent being diligently contested in good faith by appropriate proceedings;
d)    compliance with all applicable Environmental Laws;
e)    compliance with all anti-money laundering and anti-corrupt practices laws applicable to the Borrower, including by not making or causing to be made any offer, gift or payment, consideration or benefit of any kind to anyone, either directly or indirectly, as an inducement or reward for the performance of any of the transactions contemplated by this agreement to the extent the same would be in contravention of such applicable laws; and
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f)    the Borrower will maintain in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
Section 7.1.4.    The Purchased Vessel. The Borrower will:
a)    cause the Purchased Vessel to be exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries, provided that the Borrower or such Subsidiary may charter out the Purchased Vessel (i) to entities other than the Borrower and the Borrower’s wholly owned Subsidiaries and (ii) on a time charter with a stated duration not in excess of one year;
b)    cause the Purchased Vessel to be kept in such condition as will entitle her to classification by a classification society of recognized standing;
c)    provide the following to the Facility Agent with respect to the Purchased Vessel:
i)    evidence as to the ownership of the Purchased Vessel by the Borrower or one of the Borrower’s wholly owned Subsidiaries; and
ii)    evidence of no recorded Liens on the Purchased Vessel, other than Liens permitted pursuant to Section 7.2.3;
d)    within seven days after the Actual Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
i)    evidence of the class of the Purchased Vessel; and
ii)    evidence as to all required insurance being in effect with respect to the Purchased Vessel; and
e)    on or before the later of (i) 31 July and (ii) 30 days after its own receipt of a Statement of Compliance in each calendar year, supply, or procure the supply, to the Facility Agent (for distribution to BpiFAE and the Lenders) (in each case at the cost of the Borrower) of all information necessary in order for any Lender to comply with its obligations under the Poseidon Principles in respect of the preceding year, including, without limitation, all ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI (as collated and reported to the Purchased Vessel’s flag state using the verification report submitted to that flag state) and any Statement of Compliance, in each case relating to the Purchased Vessel for the preceding calendar year, provided always that such information shall be confidential information for the purposes of Section 11.15 and, accordingly, no Lender shall publicly disclose such information with the identity of the Purchased Vessel or the Borrower (or, if applicable, the Borrower’s wholly owned Subsidiary that then owns the Purchased Vessel) without the prior written consent of the Borrower (it being expressly agreed however that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the relevant Lender’s portfolio climate alignment).
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Section 7.1.5.    Insurance. The Borrower will maintain or cause to be maintained with responsible insurance companies insurance with respect to the Purchased Vessel against such casualties, third-party liabilities and contingencies and in such amounts, in each case, as is customary for other businesses of similar size in the passenger cruise line industry (provided that in no event will the Borrower or any Subsidiary be required to obtain any business interruption, loss of hire or delay in delivery insurance) and will, upon request of the Facility Agent, furnish to the Facility Agent (with sufficient copies for distribution to each Lender) at reasonable intervals a certificate of a senior officer of the Borrower setting forth the nature and extent of all insurance maintained by the Borrower and certifying as to compliance with this Section.
Section 7.1.6.    Books and Records. The Borrower will keep books and records that accurately reflect all of its business affairs and transactions and permit the Facility Agent and each Lender or any of their respective representatives, at reasonable times and intervals and upon reasonable prior notice, to visit each of its offices, to discuss its financial matters with its officers and to examine any of its books or other corporate records.
Section 7.1.7.    BpiFAE Insurance Policy/French Authority Requirements. The Borrower shall, on the reasonable request of the ECA Agent or the Facility Agent, provide such other information as required under the BpiFAE Insurance Policy and/or the Interest Stabilisation Agreement as necessary to enable the ECA Agent or the Facility Agent to obtain the full support of the relevant French Authority pursuant to the BpiFAE Insurance Policy and/or the Interest Stabilisation Agreement (as the case may be). The Borrower must pay to the ECA Agent or the Facility Agent the amount of all reasonable costs and expenses reasonably incurred by the ECA Agent or the Facility Agent in connection with complying with a request by any French Authority for any additional information necessary or desirable in connection with the BpiFAE Insurance Policy or the Interest Stabilisation Agreement (as the case may be); provided that the Borrower is consulted before the ECA Agent or Natixis incurs any such cost or expense.
Section 7.1.8.    Further Assurances in respect of the Framework. The Borrower will from time to time throughout the Financial Covenant Waiver Period, and at the request of the Facility Agent, promptly enter into good faith negotiations in respect of (a) amending this Agreement to remove the carve-out of Section 7.2.4 set out in Section 9.1.4 and/or (b) amending the financial covenants set forth in this Agreement, resetting the testing of such financial covenants and/or supplementing those financial covenants with additional financial covenants. A failure to reach an agreement under this paragraph following such good faith negotiations shall not constitute an Event of Default or a Prepayment Event.
Section 7.1.9.    Equal Treatment with Pari Passu Creditors. The Borrower undertakes with the Facility Agent that it shall ensure (and shall procure that each other Group Member shall ensure) that the Lenders are treated equally in all respects with all other Pari Passu Creditors, and accordingly:
a)    the Borrower shall, to the extent not already entered into as at the Fourth Supplement Effective Date, enter into similar covenant amendment and replacement and mandatory prepayment arrangements to those contemplated by the Fourth Novation Agreement Supplement in respect of each ECA Financing (and for this purpose excluding any ECA Financings where the
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lenders under that ECA Financing do not provide their consent to such arrangements in circumstances where the arrangements contemplated in respect of that ECA Financing are on substantially the same basis as set out in this Agreement (as amended by the Fourth Novation Agreement Supplement) but including any financing which will, upon novation of the relevant facility agreement to the Borrower, become an ECA Financing) as soon as reasonably practicable after the Fourth Supplement Effective Date (with such amendments being on terms which shall not prejudice the rights of BpiFAE under this Agreement);
b)    the Borrower shall promptly upon written request, supply the Facility Agent and the ECA Agent with information (in a form and substance satisfactory to the Facility Agent and ECA Agent) regarding the status of the amendments to be entered into in accordance with paragraph (a) above;
c)    to enable the Borrower to comply with the requirements under paragraph (d) below, prior to any Group Member entering into any Restricted Credit Enhancement with a Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.9(a)(ii)), the Borrower shall promptly notify the Facility Agent (and such notification shall include details of the new Lien or Group Member Guarantee and shall otherwise be in form and substance reasonably satisfactory to the Facility Agent); and
d)     at the same time as any relevant Restricted Credit Enhancement is provided to the relevant Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.9(a)(ii)), the Borrower, any relevant Group Member and the Lenders shall enter into such documentation as may be necessary in the reasonable opinion of the Facility Agent to ensure that the Lenders benefit from that Restricted Credit Enhancement on the same terms as the relevant Pari Passu Creditor(s) and, where that Restricted Credit Enhancement is a Lien or a Group Member Guarantee, to share in that Lien or Group Member Guarantee on a pari passu basis (and the Lenders agree to enter into such intercreditor documentation to reflect such pari passu ranking (in a form and substance satisfactory to the Lenders (acting reasonably)) as may be required in connection with such arrangements).
Section 7.1.10.        Performance of shipbuilding contract obligations. During the Financial Covenant Waiver Period, the Borrower shall (and shall procure that each of its Subsidiaries shall) comply with its contractual commitments under and in respect of (i) each shipbuilding contract in existence as at the Fourth Supplement Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into with the Builder and (ii) any option agreements or similar binding contractual commitments (whether in respect of a firm order of a vessel or otherwise) in existence at the Fourth Supplement Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into by the Borrower (or any of its Subsidiaries) and the Builder in connection with the potential entry into of a shipbuilding contract at a future point in time (it being agreed that such obligation shall not
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require the Borrower or the relevant Subsidiary (as applicable) to exercise any option or other contractual right thereunder), save that this Section 7.1.10 shall be subject to any amendment to any such shipbuilding contract, option agreement, contract or other related document if such amendment has, in consultation with the ECA Agent (acting on the instructions of BpiFAE), been agreed between the Borrower or, as the case may be, relevant Subsidiary and the Builder.
Section 7.2.    NEGATIVE COVENANTS. The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date until all Commitments have terminated and all Obligations have been paid and performed in full, the Borrower will perform the obligations set forth in this Section 7.2.
Section 7.2.1.    Business Activities. The Borrower will not, and will not permit any of its Subsidiaries to, engage in any principal business activity other than those engaged in by the Borrower and its Subsidiaries on the date hereof and other business activities reasonably related, ancillary or complimentary thereto or that are reasonable extensions thereof.
Section 7.2.2.    Indebtedness. Until the occurrence of the Guarantee Release Date (whereupon Section 7.2.2 of Exhibit N shall apply in accordance with Section 7.3), the Borrower will not permit any of the Existing Principal Subsidiaries to create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, other than, without duplication, the following:
a)    Indebtedness secured by Liens of the type described in Section 7.2.3;
b)    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower;
c)    Indebtedness incurred to finance, refinance or refund the cost (including the cost of construction) of assets acquired after the Effective Date;
d)    Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted to be secured under Section 7.2.3(b), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
e)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; and
f)    Indebtedness of Silversea Cruise Holding Ltd. and its Subsidiaries (“Silversea”) identified in Section 1 of Exhibit F hereto.
Section 7.2.3.    Liens. Until the occurrence of the Guarantee Release Date (whereupon Section 7.2.2 of Exhibit N shall apply in accordance with Section 7.3), the Borrower
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will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired, except:
a)    Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Borrower after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Vessel, owns a Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
b)    in addition to other Liens permitted under this Section 7.2.3, Liens securing Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted under Section 7.2.2(d), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10% of the total assets of the Borrower and its Subsidiaries (the “Lien Basket Amount”) taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; provided, however that, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody’s and S&P, the Lien Basket Amount shall be the greater of (x) 5.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter and (y) $735,000,000;
c)    Liens on assets acquired after the Effective Date by the Borrower or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Borrower or any of its Subsidiaries in anticipation thereof;
d)    Liens on any asset of any corporation that becomes a Subsidiary of the Borrower (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Borrower is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation becomes a Subsidiary of the Borrower and were not created by the Borrower or any of its Subsidiaries in anticipation thereof;
e)    Liens securing Government-related Obligations;
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f)    Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;
g)    Liens of carriers, warehousemen, mechanics, material-men and landlords incurred in the ordinary course of business for sums not overdue by more than 60 days or being diligently contested in good faith by appropriate proceedings;
h)    Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
i)    Liens for current crew’s wages and salvage;
j)    Liens arising by operation of law as the result of the furnishing of necessaries for any Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings;
k)    Liens on Vessels that:
i)    secure obligations covered (or reasonably expected to be covered) by insurance;
ii)    were incurred in the course of or incidental to trading such Vessel in connection with repairs or other work to such Vessel; or
iii)    were incurred in connection with work to such Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;
provided that, in each case described in this clause (k), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;
l)    normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers’ liens, rights of set-off or similar rights in favor of banks or other depository institutions;
m)    Liens in respect of rights of set-off, recoupment and holdback in favor of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business;
n)    Liens on cash or Cash Equivalents or marketable securities securing obligations in respect of Hedging Instruments not incurred for speculative purposes or securing letters of credit that support such obligations;
o)    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of
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a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
p)    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
q)    licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
r)    Liens on any property of Silversea identified in Section 2 of Exhibit F hereto,
provided, however that from the Fourth Supplement Effective Date until the Guarantee Release Date, no Group Member shall be entitled to grant any Lien of the type referred to in paragraphs (a) to (d) above over any ECA Financed Vessel.
Section 7.2.4.    Financial Condition. The Borrower will not permit
a)    Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1.
b)    Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter.
In addition, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody’s and S&P, the Borrower will not permit Stockholders’ Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single accounting period, but in any event excluding any Fiscal Quarters for which the Borrower and its Subsidiaries have a consolidated net loss).
SECTION 7.2.4(A). Most favored lender with respect to Financial Covenants. During the Financial Covenant Waiver Period, if any Group Member agrees, in respect of any of its Indebtedness for borrowed money, to any new, modified or substitute financial covenants of the type, or similar to, the financial covenants set out in Section 7.2.4 above then (i) the Borrower shall notify the Facility Agent in writing within 5 Business Days of such new, modified or substitute financial covenants being agreed with the relevant creditor(s) and (ii) if required by the Lenders, the Borrower and the Lenders shall, as soon as practicable thereafter, enter into an amendment to this Agreement to incorporate the new, modified or substitute financial covenants.
SECTION 7.2.4(B). Notification of change to financial covenants.    (i)     If at any time during the Financial Covenant Waiver Period, other than as notified
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in writing by the Borrower to the Facility Agent prior to the date of the Fourth Novation Agreement Supplement, the last day of a financial covenant waiver period under any of the agreements in respect of any of the Borrower’s other Indebtedness shall be amended such that it falls prior to September 30, 2022, the Borrower shall notify the Facility Agent and that revised date, save as provided below, shall be the last date of the Financial Covenant Waiver Period for the purposes of this Agreement.
(ii)    If, other than as notified in writing by the Borrower to the Facility Agent prior to the date of the Fourth Novation Agreement Supplement, following receipt of the notice referred to in sub-paragraph (i) above, the relevant date referred to above is then extended, the Borrower shall be entitled to notify the Facility Agent of the same and, upon receipt of that notice, such revised date or, if earlier, September 30, 2022, shall then become the final date of the Financial Covenant Waiver Period for the purposes of this Agreement.
SECTION 7.2.4(C). Minimum liquidity.     The Borrower will not allow the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP to be less than the Adjustable Amount as of (i) the last day of any calendar month from the Fourth Supplement Effective Date until the Covenant Modification Date, or (ii) if the Borrower is not in compliance with the requirements of this Section 7.2.4(C) as of the last day of any calendar month during the Financial Covenant Waiver Period (or, if earlier, prior to the Covenant Modification Date), the date the certificate required by Section 7.1.1(k) with respect to such month is delivered to the Facility Agent (it being understood that the Borrower shall not be required to comply with this Section 7.2.4(C) at any time on or after the Covenant Modification Date).
Section 7.2.5.    Additional Undertakings. From the effectiveness of the Third Novation Agreement Supplement, and notwithstanding anything to the contrary set out in this Agreement or any other Loan Document:
a)    First Priority Guarantee Matters. Until the occurrence of a First Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the First Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the First Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(iii)    the First Priority Guarantor will not incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with any Other Guarantees;
(iv)    neither Celebrity Cruises Holdings Inc. nor Celebrity Cruises Inc will incur any additional Indebtedness for borrowed money (including any
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guarantees in respect of Indebtedness), except in connection with the Secured Note Indebtedness or any Permitted Refinancing thereof; and
(v)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any First Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any First Priority Assets, other than
(A)    to any other entity that is a First Priority Guarantor;
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of First Priority Assets made after the effectiveness of the Third Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(2)    $250,000,000 plus
(3)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) First Priority Assets or other assets owned by another First Priority Guarantor immediately prior to acquisition) acquired by any First Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement; or
(C)    if the net proceeds therefrom are applied in accordance with Section 4.09(b)(i) or 4.09(b)(iii) of the Secured Note Indenture, to the extent applicable at such time; provided, however, that if, within 450 days of such Disposition, any net proceeds of such Disposition have not been utilized in accordance with such provisions and are retained by the Borrower or any Subsidiary after such application (such retained net proceeds, “Excess Proceeds”), then:
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(1)    if not already held by a First Priority Guarantor, such Excess Proceeds shall be promptly transferred to a First Priority Guarantor to be (x) retained in an account and on the balance sheet of that First Priority Guarantor and (y) used solely (i) for capital expenditures for the benefit of the remaining First Priority Assets or for the purposes of any asset purchase by that First Priority Guarantor or (ii) to make an offer to each ECA Guarantor in accordance with the following sub-clause (2); or
(2)    where the Borrower has elected to utilize the Excess Proceeds in the manner referred to in (ii) above, the Borrower shall make a written offer contemporaneously to each ECA Guarantor to apply such Excess Proceeds as a pro rata prepayment of the Loan and the Indebtedness under each other ECA Financing that is pari passu in right of payment to the Obligations. If any ECA Guarantor provides written notice to the Borrower within 90 days of such offer accepting such offer, the Borrower shall prepay the relevant Indebtedness notified to it within 10 Business Days (or such longer period as may be agreed with the lenders under each relevant ECA Financing being prepaid) of the date of receipt of such notice. If any ECA Guarantor fails to accept such offer within the said 90 days referred to above, then the pro rata portion of such Excess Proceeds that would have been applied to prepay the ECA Financings with respect to such ECA Guarantor if such offer was accepted shall be retained and applied in accordance with the foregoing sub-clause (1)(i).
b)    Second Priority Guarantee Matters. Until the occurrence of a Second Priority Release Event:
(i)    the Borrower will not, and will not permit any of its Subsidiaries to, form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Second Priority Guarantor (and will not
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permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    no Second Priority Guarantor will form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any Second Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Second Priority Assets, other than:
(A)    to any other entity that is a Second Priority Guarantor; or
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Second Priority Assets made after the effectiveness of the Third Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A)) is less than the sum of:
(1)    $250,000,000 plus
(2)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Second Priority Assets or other assets owned by another Second Priority Guarantor immediately prior to acquisition) acquired by any Second Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement.
c)    Third Priority Guarantee Matters. Until the occurrence of a Third Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the Third Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the Third Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
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(iii)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any Third Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Third Priority Assets, other than:
(A)    to any other entity that is a Third Priority Guarantor;
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Third Priority Assets made after the effectiveness of the Third Novation Agreement Supplement (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(1)    $250,000,000 plus
(2)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Third Priority Assets or other assets owned by another Third Priority Guarantor immediately prior to acquisition) acquired by any Third Priority Guarantor after the effectiveness of the Third Novation Agreement Supplement; or
(C)    if the net proceeds therefrom are applied in accordance with those provisions of the Unsecured Note Indenture and/or the definitive documentation governing the DDTL Indebtedness to the extent applicable at the time which allow the Borrower to make an offer to prepay and/or repay the debt evidenced by the Unsecured Note Indenture and/or DDTL Indebtedness, as applicable; provided that, if any such net proceeds are retained by the Borrower or any Subsidiary after such application, the Borrower shall promptly repay or redeem all or any portion of any Indebtedness that is pari passu or senior in right of payment to the Obligations and for which a Third Priority Guarantor is a guarantor, in each case, subject to the terms of the documentation governing such Indebtedness (including the DDTL Indebtedness, the Unsecured Note Indebtedness, any Bank Indebtedness, any Credit Card Obligations, the Loan and any other Indebtedness under an ECA Financing);
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provided, further, that any repayment of Indebtedness under any revolving credit agreement pursuant to this paragraph shall be accompanied by a corresponding permanent reduction in the related revolving credit commitments.
d)    New Guarantor Matters. In the event the Borrower or any of its Subsidiaries acquires an ECA Financed Vessel:
(i)    the Borrower will cause the applicable New Guarantor to provide:
(A)    on or before the later of (1) 15 Business Days of the purchase of the relevant ECA Financed Vessel and (2) the Effective Time, (A) an Additional Guarantee, together with each equivalent Other Guarantee required to be provided under the terms of the other ECA Financings (as amended from time to time) and (B) all documents and information required by the Lenders in order to satisfy any applicable “know your customer” checks and any other reasonable condition precedent requirements of the Lenders (excluding, for the avoidance of doubt, legal opinions); provided that, in each case, if such New Guarantor is party to a Senior Guarantee at such time, the Facility Agent shall have contemporaneously entered into a New Guarantor Subordination Agreement; and
(ii)    until the occurrence of a Second Priority Release Event and a Third Priority Release Event:
(A)    the Borrower will not permit the applicable New Guarantor to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness) other than the applicable Additional Guarantee, any Other Guarantee and any Senior Guarantee;
(B)    the Borrower will not permit the Principal Subsidiary that acquires the relevant ECA Financed Vessel to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness);
(C)    notwithstanding any other provision of this Agreement, the Borrower will not, and shall procure that no other Subsidiary shall Dispose (whether to a Group Member or otherwise) of the relevant ECA
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Financed Vessel (or any equity interests in a Subsidiary that owns, directly or indirectly, such ECA Financed Vessel); provided that (1) such ECA Financed Vessel may be exclusively operated by or chartered to the Borrower or one of the Borrower’s wholly owned Subsidiaries and (2) the Borrower or such Subsidiary may charter out such ECA Financed Vessel (x) to entities other than the Borrower and the Borrower’s wholly owned Subsidiaries and (y) on a time charter with a stated duration not in excess of one year; and
(D)    notwithstanding the provisions of Sections 7.2.2 and 7.2.3, the Borrower will not, and will not permit any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon the relevant ECA Financed Vessel, other than Liens permitted under Section 7.2.3 that do not secure Indebtedness for borrowed money.
e)    Further Assurances. At the Borrower’s reasonable request, the Facility Agent shall execute (i) any Additional Subordination Agreement or any Subordination Agreement, in substantially the form attached hereto as Exhibit J or Exhibit K with such changes, or otherwise in form and substance, reasonably satisfactory to the Facility Agent (acting upon the instructions of the Required Lenders and BpiFAE), to ensure the required priority of the Second Priority Guarantee and the Third Priority Guarantee and (ii) any New Guarantor Subordination Agreement contemporaneously with the execution of any Senior Guarantee by a New Guarantor if such New Guarantor has granted an Additional Guarantee at such time.
f)    Amount of Indebtedness. The Borrower shall ensure that:
(i)    the maximum aggregate principal amount of Bank Indebtedness (or any Permitted Refinancing thereof) guaranteed by the Second Priority Guarantors shall not exceed, in the aggregate, $5,300,000,000 (or its equivalent in any other currency) until the occurrence of a First Priority Release Event, a Second Priority Release Event, and a Third Priority Release Event;
(ii)    the maximum aggregate principal amount of Unsecured Note Indebtedness and DDTL Indebtedness (or any Permitted Refinancing of either of them), in each case, guaranteed by the Third Priority Guarantor shall not exceed, in the aggregate, $1,700,000,000 (or its equivalent in any other currency) until the occurrence of a Third Priority Release Event;
(iii)    until the occurrence of a Second Priority Release Event, none of the Second Priority Guarantors will grant any guarantee that is pari passu with or senior to its obligations under the Second Priority Guarantee, except in connection
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with (A) any Bank Indebtedness or any Permitted Refinancing thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that currently provided by that Second Priority Guarantor in connection with the relevant Indebtedness; and
(iv)    until the occurrence of a Third Priority Release Event, the Third Priority Guarantor will not grant any guarantee that is pari passu with or senior to its obligations under the Third Priority Guarantee, except in connection with (A) any Bank Indebtedness, Unsecured Note Indebtedness, DDTL Indebtedness or any Permitted Refinancing of any thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that currently provided by the Third Priority Guarantor in connection with the relevant Indebtedness.
g)    Release of Guarantees. The Borrower agrees to give the Facility Agent written notice of the occurrence of any First Priority Release Event, Second Priority Release Event or Third Priority Release Event. The Facility Agent agrees, subject to the proviso (2) below, that:
(i)    the First Priority Guarantee shall be automatically released upon the occurrence of a First Priority Release Event;
(ii)    the Second Priority Guarantee shall be automatically released upon the occurrence of a Second Priority Release Event;
(iii)    the Third Priority Guarantee shall be automatically released upon the occurrence of a Third Priority Release Event; and
(iv)    each Additional Guarantee shall be automatically released upon the occurrence of both a Second Priority Release Event and a Third Priority Release Event,
provided (1) in each case, and subject to the proviso (2) below, that upon the Borrower’s request, the Facility Agent shall promptly confirm in writing the release of the applicable Guarantee following the occurrence of the relevant release event and (2) where the Borrower is of the opinion that it would, if the Guarantee Release Date was to occur, be in breach of the provisions of Section 7.2.2 as set out in Exhibit N (and which would otherwise come into effect on that Guarantee Release Date) on the Guarantee Release Date, the Borrower shall be entitled, by serving written notice on the Facility Agent, to request that the Guarantee Release Date be postponed until such time as the Borrower is satisfied that it will be able to comply with the provisions of the said Section 7.2.2. Where the Borrower issues a notice pursuant to this proviso (2) it agrees that it shall use all reasonable endeavors and take all appropriate action as may be practicable at such time to enable it to comply with the said Section 7.2.2 as soon as practicable following the date that the Guarantee Release Date would have occurred but for this proviso (2) so that the Guarantee Release Date can then occur and, as soon as it is satisfied that it will be able to comply with the said Section 7.2.2 it will promptly serve a further written notice on the  Facility Agent. Upon receipt
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of this further notice, the provisions of this paragraph (g) shall once again apply and the Facility Agent shall then take the action required of it to enable the Guarantee Release Date to occur.
Section 7.2.6.    Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation, except:
a)    any such Subsidiary may (i) liquidate or dissolve voluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 7.2.7; and
b)    so long as no Event of Default has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
i)    after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
ii)    in the case of a merger involving the Borrower where the Borrower is not the surviving corporation, (and without prejudice to the provisions of Sections 3.2b) and c) and 9.1.10, which shall not restrict the proposed merger but which can still apply to the extent that the proposed merger would give rise to any of the events or circumstances contemplated by such Sections):
(A)    the surviving corporation shall have assumed in writing, delivered to the Facility Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents; and
(B)    the surviving corporation shall, promptly upon the request of the Facility Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Facility Agent or any Lender in order for the Facility Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations.
Section 7.2.7.    Asset Dispositions, etc. Subject to Section 7.2.5, the Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or substantially all of the assets of (a) the Borrower or (b) the Subsidiaries of the Borrower, taken as a whole, except sales of assets between or among the Borrower and Subsidiaries of the Borrower.

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Section 7.2.8.    Borrower’s Procurement Undertaking. Where any of the covenants set out in this Agreement require performance by any Subsidiary of the Borrower, the Borrower shall procure the performance of that obligation by such Subsidiary.
Section 7.2.9.    Framework Lien and Guarantee Restriction. From the Fourth Supplement Effective Date until the Guarantee Release Date, and without prejudice to Section 7.2.3, the Borrower shall not (and shall procure that each other Group Member shall not, save in respect of a Restricted Credit Enhancement of the type referred to in Section 7.1.9(d) (and in respect of which the Lenders therefore receive the benefit)):
a)    grant any Restricted Credit Enhancement in respect of any Indebtedness for borrowed money, provided that:
i)    subject to the limitations set out in paragraph (b) below, this paragraph (a) shall not prohibit any Group Member from providing any Lien or Group Member Guarantee in connection with Indebtedness incurred after the Fourth Supplement Effective Date (provided that such Lien and/or Group Member Guarantee is issued at the same time, and in connection with, the initial incurrence of that Indebtedness (and is therefore not by way of additional credit support));
ii)    in connection with a Permitted Refinancing of any Indebtedness, the relevant Group Member shall be entitled to provide the creditors under that Permitted Refinancing with Liens and/or Group Member Guarantees (as applicable) which:
(A)    in the case where the existing Indebtedness being refinanced was previously supported by Liens, the Liens and/or the Group Member Guarantees securing or supporting the Permitted Refinancing (as applicable) are over some or all of the same assets and
(1)    with respect to any Liens, are with the same or lower priority as the Liens in respect of such assets that secured the Indebtedness being refinanced; and    
(2)     with respect to any Group Member Guarantees, are Group Member Guarantees provided by a Group Member that owns (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that were previously secured pursuant to the Liens referred to in the first sentence of this paragraph (A); and        
(B)    in the case where the existing Indebtedness being refinanced was previously supported by any Group Member Guarantee, the Group Member Guarantee(s) supporting such Permitted Refinancing are:
(1)    guarantees of obligations in an amount no greater than the guarantees granted in connection with the original Indebtedness being refinanced;
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(2)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing is the same entity providing the Group Member Guarantees that are being replaced, provided by entities owning (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that it owned when the previous Group Member Guarantee was provided;
(3)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing differs from the entity providing the Group Member Guarantees being replaced, provided by entities that directly or indirectly own Vessels with an aggregate book value no greater than the Vessels that were owned (directly or indirectly) by the previous provider of the relevant Group Member Guarantee(s) that supported the existing Indebtedness; and
(4)    the same or lower priority as the original Group Member Guarantee(s) and are issued by either the same entities or from shareholders of those entities,
provided that this paragraph (a) shall not prohibit any Group Member from providing or maintaining any Lien in accordance with the provisions of Section 7.2.3(d) through to (q) inclusive, provided, however, that the proviso at the end of Section 7.2.3(d) shall apply with respect to Liens granted pursuant to that provision; and
b)    incur any new Indebtedness (including Indebtedness of the type referred to in paragraph (a)(i) above but excluding any Permitted Refinancing Indebtedness in connection with paragraph (a)(ii) above) which is secured by a Lien or is supported by a Group Member Guarantee and which, when taken with all other Indebtedness incurred by the Group since the Fourth Supplement Effective Date and which is also secured by a Lien or supported by a Group Member Guarantee, is greater than $1,300,000,000 (but deducting from this amount for this purpose, (i) the amount of any additional Indebtedness incurred by the Borrower in connection with the drawing of the DDTL Indebtedness (whether pursuant to the accordion option or otherwise) or (ii) any Indebtedness borrowed in lieu of the drawing of the DDTL Indebtedness in the foregoing clause) or its equivalent in any other currency, and provided that no Group Member shall, as contemplated by the proviso to Section 7.2.3, from the Fourth Supplement Effective Date until the Guarantee Release Date (whereupon the relevant provisions of Exhibit N shall apply) be permitted to grant any Lien over an ECA Financed Vessel as security for any Indebtedness permitted to be incurred under this Agreement after the Fourth Supplement Effective Date.
Section 7.3.    COVENANT REPLACEMENT.
With effect on and from the Guarantee Release Date, it is agreed that Sections 7.2.2 and 7.2.3 shall be deleted in their entirety and replaced with the covenants and other provisions
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set out in Exhibit N, which shall become part of this Agreement and effective and binding on all Parties.
Section 7.4.    LENDER INCORPORATED IN THE FEDERAL REPUBLIC OF GERMANY. The representations and warranties and covenants given in Sections 6.16 and 7.1.3(f) respectively shall only be given, and be applicable to, a Lender incorporated in the Federal Republic of Germany insofar as the giving of and compliance with such representations and warranties do not result in a violation of or conflict with section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section 4 paragraph 1 a no.3 foreign trade law (AWG) (Außenwirtschaftsgesetz)), any provision of Council Regulation (EC) 2271/1996 or any similar applicable anti-boycott law or regulation.
ARTICLE VIII

EVENTS OF DEFAULT
Section 8.1.    LISTING OF EVENTS OF DEFAULT. Each of the following events or occurrences described in this Section 8.1 shall constitute an “Event of Default”.
Section 8.1.1.    Non-Payment of Obligations. The Borrower shall default in the payment when due of any amount payable by it under the Loan Documents in the manner required under the Loan Documents unless such failure is solely as a result of either (a) administrative or technical error or (b) a Disruption Event, and, in either case, payment is made within 3 Business Days of its due date.
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) or under any other Loan Document is or shall be incorrect in any material respect when made.
Section 8.1.3.    Non-Performance of Certain Covenants and Obligations. The Borrower shall default in the due performance and observance of any other agreement contained herein (including, from the Guarantee Release Date, Exhibit N) or in any other Loan Document (other than the covenants set forth in Section 7.1.1(i), Section 7.1.1(l), Section 7.1.1(m), Section 7.1.1(n), Section 7.1.1(o), Section 7.1.4(e), Section 7.1.8, Section 7.1.10 and Section 7.2.4 (but excluding Sections 7.2.4(A) and 7.2.4(B) (which shall be regulated in accordance with Section 9.1.11(d)) and also excluding Section 7.2.4(C), a breach of which shall, subject to the cure periods set out in this Section 8.1.3, result in an Event of Default) and the obligations referred to in Section 8.1.1) and such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower is actively seeking to remedy the same during such period, such default shall continue unremedied for at least 35 days after such notice to the Borrower).
Section 8.1.4.    Default on Other Indebtedness. (a) The Borrower or any of the Principal Subsidiaries shall fail to pay any Indebtedness that is outstanding in a principal amount of at least $100,000,000 (or the equivalent in other currencies) in the aggregate (but excluding
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Indebtedness hereunder or with respect to Hedging Instruments) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (b) the occurrence under any Hedging Instrument of an Early Termination Date (as defined in such Hedging Instrument) resulting from (A) any event of default under such Hedging Instrument as to which the Borrower is the Defaulting Party (as defined in such Hedging Instrument) or (B) any Termination Event (as so defined) as to which the Borrower is an Affected Party (as so defined) and, in either event, the termination value with respect to any such Hedging Instrument owed by the Borrower as a result thereof is greater than $100,000,000 and the Borrower fails to pay such termination value when due after applicable grace periods; or (c) any other event shall occur or condition shall exist under any agreement or instrument evidencing, securing or relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to cause or permit the holder or holders of such Indebtedness to cause such Indebtedness to become due and payable prior to its scheduled maturity; or (d) any such Indebtedness shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption or by voluntary agreement), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness is required to be made, in each case prior to the scheduled maturity thereof (other than as a result of any sale or other disposition of any property or assets under the terms of such Indebtedness); provided that any required prepayment or right to require prepayment triggered by terms that are certified by the Borrower to be unique to, but customary in, ship financings shall not constitute an Event of Default under this Section 8.1.4 so long as any required prepayment is made when due. For purposes of determining Indebtedness for any Hedging Instrument, the principal amount of the obligations under any such instrument at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or any Principal Subsidiary would be required to pay if such instrument were terminated at such time.
Section 8.1.5.    Bankruptcy, Insolvency, etc. The Borrower, any of the Material Guarantors or any of the Principal Subsidiaries (or any of its other Subsidiaries to the extent that the relevant event described below would have a Material Adverse Effect) shall:
a)    generally fail to pay, or admit in writing its inability to pay, its debts as they become due;
b)    apply for, consent to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or other custodian for it or any of its property, or make a general assignment for the benefit of creditors;
c)    in the absence of such application, consent or acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or other custodian for it or for a substantial part of its property, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 60 days, provided that in the case of such an event in respect of the Borrower or any Material Guarantor, such Person hereby expressly authorizes the Facility Agent and each Lender to appear in any court conducting any relevant proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents;
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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, any Material Guarantor or any of such Subsidiaries, and, if any such case or proceeding is not commenced by the Borrower, such Material Guarantor or such Subsidiary, such case or proceeding shall be consented to or acquiesced in by the Borrower, such Material Guarantor or such Subsidiary or shall result in the entry of an order for relief or shall remain for 60 days undismissed, provided that the Borrower and each Material Guarantor hereby expressly authorizes the Facility Agent and each Lender to appear in any court conducting any such case or proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents; or
e)    take any corporate action authorizing, or in furtherance of, any of the foregoing.
Section 8.2.    ACTION IF BANKRUPTCY. If any Event of Default described in clauses (b) through (d) of Section 8.1.5 shall occur with respect to any Group Member, the Commitments (if not theretofore terminated) shall automatically terminate and the outstanding principal amount of the Loan and all other Obligations shall automatically be and become immediately due and payable, without notice or demand.
Section 8.3.    ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default (other than any Event of Default described in clauses (b) through (d) of Section 8.1.5 with respect to a Group Member) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Facility Agent, upon the direction of the Required Lenders (after consultation with BpiFAE who shall have the right to instruct the Lenders to waive such Event of Default), shall by notice to the Borrower declare all of the outstanding principal amount of the Loan and other Obligations to be due and payable and/or the Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of the Loan and other Obligations shall be and become immediately due and payable, without further notice, demand or presentment, and/or, as the case may be, the Commitments shall terminate.
ARTICLE IX

PREPAYMENT EVENTS
Section 9.1.    LISTING OF PREPAYMENT EVENTS. Each of the following events or occurrences described in this Section 9.1 shall constitute a “Prepayment Event”.
Section 9.1.1.    Change of Control. There occurs any Change of Control.
Section 9.1.2.    Unenforceability. Any Loan Document shall cease to be the legally valid, binding and enforceable obligation of the Borrower or, to the extent applicable, any Material Guarantor (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 B-1 or in any opinion delivered to the Facility Agent after the Signing Date in connection with this Agreement or (ii) that a court of competent jurisdiction has determined are not material) and such
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event shall continue unremedied for 15 days after notice thereof has been given to the Borrower by the Facility Agent.
Section 9.1.3.    Approvals. Any material license, consent, authorization, registration or approval at any time necessary to enable the Borrower, any Material Guarantor or any Principal Subsidiary to conduct its business shall be revoked, withdrawn or otherwise cease to be in full force and effect, unless the same would not have a Material Adverse Effect.
Section 9.1.4.    Non-Performance of Certain Covenants and Obligations. The Borrower shall default in the due performance and observance of any of the covenants set forth in Sections 4.12, 7.1.1(m), 7.1.4(e) or 7.2.4 (but excluding Section 7.2.4(C)) and, in the case of Sections 7.1.1(m) and 7.1.4(e), such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower is actively seeking to remedy the same during such period, such default shall continue unremedied for at least 35 days after such notice to the Borrower), provided that any such default in respect of Section 7.2.4 (but again excluding Section 7.2.4(C)), that occurs during the Financial Covenant Waiver Period (but without prejudice to the rights of the Lenders in respect of any further breach that may occur following the expiry of the Financial Covenant Waiver Period) shall not (as long as no Event of Default under Section 8.1.5 has occurred and is continuing, or no Prepayment Event under Section 9.1.11 or 9.1.12 has occurred, in each case during the Financial Covenant Waiver Period) constitute a Prepayment Event.
Section 9.1.5.    Judgments. Any judgment or order for the payment of money in excess of $100,000,000 shall be rendered against the Borrower or any of the Principal Subsidiaries by a court of competent jurisdiction and the Borrower or such Principal Subsidiary shall have failed to satisfy such judgment and either:
a)    enforcement proceedings in respect of any material assets of the Borrower or such Principal Subsidiary shall have been commenced by any creditor upon such judgment or order and shall not have been stayed or enjoined within five (5) Business Days after the commencement of such enforcement proceedings; or
b)    there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
Section 9.1.6.    Condemnation, etc. The Purchased Vessel shall be condemned or otherwise taken under color of law or requisitioned and the same shall continue unremedied for at least 20 days, unless such condemnation or other taking would not have a Material Adverse Effect.
Section 9.1.7.    Arrest. The Purchased Vessel shall be arrested and the same shall continue unremedied for at least 20 days, unless such arrest would not have a Material Adverse Effect.

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Section 9.1.8.    Sale/Disposal of the Purchased Vessel. The Purchased Vessel is sold to a company which is not the Borrower or any other Subsidiary of the Borrower (other than for the purpose of a lease back to the Borrower or any other Subsidiary of the Borrower).
Section 9.1.9.    BpiFAE Insurance Policy. The BpiFAE Insurance Policy is cancelled for any reason or ceases to be in full force and effect.
Section 9.1.10.    Illegality. No later than the close of business on the last day of the Option Period related to the giving of any Illegality Notice by an affected Lender pursuant to Section 3.2(b), either: (x) the Borrower has not elected to take an action specified in clause (1) or (2) of Section 3.2(c) or (y) if any such election shall have been made, the Borrower has failed to take the action required in respect of such election. In such circumstances the Facility Agent (at the direction of the affected Lender) shall by notice to the Borrower require the Borrower to prepay in full all principal and interest and all other Obligations owing to such Lender either (i) forthwith or, as the case may be, (ii) on a future specified date not being earlier than the latest date permitted by the relevant law.
Section 9.1.11.     Framework Prohibited Events
a)    The Borrower declares, pays or makes or agrees to pay or make, directly or indirectly, any Restricted Payment, except for (i) dividends or other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests or options to purchase Equity Interests, (ii) Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans (including with respect to performance shares issued in the ordinary course of business) for present or former officers, directors, consultants or employees of the Borrower in the ordinary course of business consistent with past practice and (iii) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exercisable for Equity Interests of the Borrower;
b)    a Group Member makes any payment of any kind under any shareholder loan;
c)    a Group Member sells, transfers, leases or otherwise disposes of any its assets, whether by one or a series of related transactions and that disposal or action was not conducted on arms' length terms between a willing seller and a willing buyer and for fair market value;
d)    any Group Member breaches any of the requirements of Section 7.1.1(i), Section 7.1.1(l), Section 7.1.1(n), Section 7.1.1(o), Section 7.1.8, Section 7.1.10, Section 7.2.4(A) or Section 7.2.4(B);
e)    a Group Member completes a Debt Incurrence;
f)    a Group Member enters into a Restricted Loan Arrangement; and/or
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g)    a Group Member makes a Restricted Voluntary Prepayment and the Facility Agent (acting upon the instructions of BpiFAE) notifies the Borrower that BpiFAE has confirmed that the Financial Covenant Waiver Period shall come to an end.
SECTION 9.1.12    Breach of Principles and Framework. The Borrower shall default in the due performance and observance of the Principles and/or the Framework (it being agreed that if there is inconsistency between the terms of the Principles and the Framework, the Framework shall prevail) and, if capable of remedy, such default shall continue unremedied for a period of ten (10) days after notice thereof shall have been given to the Borrower by the Facility Agent, provided that, if the default does not otherwise constitute a Default or a Prepayment Event under another section of this Agreement as amended to date, the Borrower, the Facility Agent, the ECA Agent and BpiFAE shall negotiate a resolution in good faith for a maximum period of fifteen (15) days after notice thereof shall have been given to the Borrower by the Facility Agent.
Section 9.2.    MANDATORY PREPAYMENT. If any Prepayment Event (other than a Prepayment Event under Section 9.1.10) shall occur and be continuing, the Facility Agent, upon the direction of the Required Lenders, shall by notice to the Borrower require the Borrower to prepay in full on the date of such notice all principal of and interest on the Loan and all other Obligations (and, in such event, the Borrower agrees to so pay the full unpaid amount of the Loan and all accrued and unpaid interest thereon and all other Obligations), provided that in the case of a Prepayment Event arising under Sections 9.1.11 or 9.1.12, such Prepayment Event shall not give rise to an entitlement on the part of the Lenders to terminate the Commitments or, where the Loan has been advanced, to require that the Loan is prepaid but instead, where a notice is given by the Facility Agent pursuant to this Section 9.2 following the occurrence of a Prepayment Event under either Section 9.1.11 or 9.1.12, the waiver of Section 7.2.4 contained in Section 9.1.4 shall immediately cease such that any breach of Section 7.2.4 in existence as at the date of the notice from the Facility Agent referred to in the first sentence of this Section 9.2 or any breach occurring at any time after such notice shall constitute a Prepayment Event with all attendant consequences.
Section 9.3.    MITIGATION. If the ECA Agent, the Facility Agent or any of the Lenders become aware that an event or circumstance has arisen which will cause the BpiFAE Insurance Policy to be cancelled for any reason or no longer remain in full force and effect they shall notify the Borrower and the Lenders, the Borrower, the ECA Agent and the Facility Agent shall negotiate in good faith for a period of up to 30 days or, if less, the date by which the BpiFAE Insurance Policy shall be terminated or cease to be in full force and effect to determine whether the facility can be restructured and/or the Loan refinanced in a manner acceptable to each of the Lenders in their absolute discretion. The Lenders will use reasonable efforts to involve BpiFAE in such negotiations.
ARTICLE X

THE FACILITY AGENT AND THE ECA AGENT
Section 10.1.    ACTIONS. Each Lender hereby appoints Citibank Europe plc, UK Branch, as Facility Agent and SMBC Bank International plc as ECA Agent, as its agent under and for purposes of this Agreement and each other Loan Document (for purposes of this Article X, the
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Facility Agent and the ECA Agent are referred to collectively as the “Agents”). Each Lender authorizes the Agents to act on behalf of such Lender under this Agreement and each other Loan Document and, in the absence of other written instructions from the Required Lenders received from time to time by the Agents (with respect to which each Agent agrees that it will comply, except as otherwise provided in this Section 10.1 or as otherwise advised by counsel or as otherwise instructed by any French Authority, it being understood and agreed that any instructions provided by a French Authority shall prevail), to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Agents by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto. Neither Agent shall be obliged to act on the instructions of any Lender or the Required Lenders if to do so would, in the opinion of such Agent, be contrary to any provision of this Agreement or any other Loan Document or the BpiFAE Insurance Policy or to any law or the conflicting instructions of any French Authority, or would expose such Agent to any actual or potential liability to any third party. As between the Lenders and the Agents, it is acknowledged that each Agent’s duties under this Agreement and the other Loan Documents are solely mechanical and administrative in nature.
Section 10.2.    INDEMNITY. Each Lender hereby indemnifies (which indemnity shall survive any termination of this Agreement) each Agent, pro rata according to such Lender’s Percentage, from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel) that be incurred by or asserted or awarded against, such Agent in any way relating to or arising out of this Agreement and any other Loan Document or any action taken or omitted by such Agent under this Agreement or any other Loan Document; provided that no Lender shall be liable for the payment of any portion of such claims, damages, losses, liabilities and expenses which have resulted from such Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that such Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any such indemnified costs, this Section applies whether any such investigation, litigation or proceeding is brought by any Agent, any Lender or a third party. Neither Agent shall be required to take any action hereunder or under any other Loan Document, or to prosecute or defend any suit in respect of this Agreement or any other Loan Document, unless it is expressly required to do so under this Agreement or is indemnified hereunder to its satisfaction. If any indemnity in favor of an Agent shall be or become, in such Agent’s determination, inadequate, such Agent may call for additional indemnification from the Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given.
Section 10.3.    FUNDING RELIANCE, ETC.
a)    Each Lender shall notify the Facility Agent by 4:00 p.m., London time, one day prior to the advance of the Loan if it is not able to fund the following day. Unless the Facility Agent shall have been notified by telephone, confirmed in writing, by any Lender by 4:00 p.m., London time, on the day prior to the advance of the Loan that such Lender will not make available the amount which would constitute its Percentage of
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the Loan on the date specified therefor, the Facility Agent may assume that such Lender has made such amount available to the Facility Agent and, in reliance upon such assumption, may, but shall not be obliged to, make available to the Borrower a corresponding amount. If and to the extent that such Lender shall not have made such amount available to the Facility Agent, such Lender and the Borrower severally agree to repay the Facility Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date the Facility Agent made such amount available to the Borrower to the date such amount is repaid to the Facility Agent, at the interest rate applicable at the time to the Loan without premium or penalty.
b)    
(i)     Where a sum is to be paid to an Agent under the Finance Documents for another party to this Agreement, that Agent is not obliged to pay that sum to that other party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum
(ii)    Unless paragraph (iii) below applies, if an Agent or its Affiliate or representative on its behalf or at its direction in performing the role of Agent (that Agent and its applicable Affiliate or representative being an “Agent Entity”) pays an amount to another party to this Agreement (unless sub-paragraph (iii) below applies) or, at the direction of such party, that party’s Affiliate, related fund or representative (such other party and its applicable Affiliate, related fund or representative being an “Other Party Entity”) and it proves to be the case (and for this purpose a statement of the relevant Agent given in good faith shall be prima facie evidence of this) that (A) neither that Agent nor the applicable Agent Entity actually received that amount or (B) such amount was otherwise paid in error (whether such error was known or ought to have been known to such other party or applicable Other Party Entity), then the party to whom that amount (or the proceeds of any related exchange contract) was paid (or on whose direction its applicable Other Party Entity was paid) by the applicable Agent Entity shall hold such amount on trust or, to the extent not possible as a matter of law, for the account (or will procure that its applicable Other Party Entity holds on trust or for the account) of the Agent Entity and on demand (or will procure that its applicable Other Party Entity shall on demand) refund the same to the Agent Entity together with interest on that amount from the date of payment to the date of receipt by the Agent Entity, calculated by the Agent to reflect its cost of funds.
(iii)    If an Agent, upon the Borrower’s written request, is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then, if and to the extent that such Agent does so but it proves to be the case (and for this purpose a statement of the relevant Agent given in good faith shall be prima facie evidence of this) that it does not then receive funds from a Lender (such Lender being a “Defaulting Lender”) in respect of such sum which it paid to the Borrower (or as it may direct) then: (A) the Agent shall notify (and the Lenders expressly acknowledge that the Agent shall be entitled to so
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notify) the Borrower of the identity of the Defaulting Lender; (B) without prejudice to any rights of the Borrower against the Defaulting Lender under this Agreement (including, without limitation, in relation to any amounts required to be paid by the Borrower under sub-paragraph (C) below) the Borrower shall (or shall procure that its applicable Other Party Entity to whom such amount was paid shall) hold such amount on trust or, to the extent not possible as a matter of law, for the account, of the relevant Agent and on demand refund it to that Agent; and (C) the Defaulting Lender by whom those funds should have been made available or, if that Defaulting Lender fails to do so (and having regard to paragraph (iv) below), the Borrower shall on demand pay to the relevant Agent the amount (as certified by that Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from the Defaulting Lender
(iv)    It is expressly acknowledged and agreed that, without prejudice to the requirement of the Borrower to make the payments referred to in paragraphs (ii) and (iii) above:
(A) the Borrower shall not be obliged to pay interest for the account of the Defaulting Lender on the part of the Loan that was not made available by that Defaulting Lender but which was pre-funded by the relevant Agent pursuant to this Section 10.3(b); and
(B) the Defaulting Lender shall indemnify the Borrower for any costs, losses or liabilities incurred by the Borrower arising from the Defaulting Lender’s failure to make any payment under sub-Section (iii) above.
Section 10.4.    EXCULPATION. Neither of the Agents nor any of their respective directors, officers, employees or agents shall be liable to any Lender for any action taken or omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for its own willful misconduct or gross negligence. Without limitation of the generality of the foregoing, each Agent (i) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it and in accordance with the advice of such counsel, accountants or experts, (ii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement, (iii) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of the Obligors or the existence at any time of any Default or Prepayment Event or to inspect the property (including the books and records) of the Obligors, (iv) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto, (v) shall incur no liability under or in respect of this Agreement by action upon any notice, consent, certificate or other instrument or writing (which may be by telecopier) believed by it to be genuine and signed or sent by the proper party or parties, and (vi) shall have no responsibility to the Borrower or any Lender on account of (A) the failure of a Lender or the Obligors to perform any of its obligations
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under this Agreement or any Loan Document; (B) the financial condition of the Obligors; (C) the completeness or accuracy of any statements, representations or warranties made in or pursuant to this Agreement or any Loan Document, or in or pursuant to any document delivered pursuant to or in connection with this Agreement or any Loan Document; or (D) the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of this Agreement or any Loan Document or of any document executed or delivered pursuant to or in connection with any Loan Document.
Section 10.5.    SUCCESSOR. The Facility Agent may resign as such at any time upon at least 30 days’ prior notice to the Borrower and all Lenders and shall resign where required to do in accordance with Section 4.14, provided that any such resignation shall not become effective until a successor Facility Agent has been appointed as provided in this Section 10.5 and such successor Facility Agent has accepted such appointment. If the Facility Agent at any time shall resign, the Required Lenders shall, subject to the immediately preceding proviso and subject to the consent of the Borrower (such consent not to be unreasonably withheld), appoint another Lender as a successor to the Facility Agent which shall thereupon become such Facility Agent’s successor hereunder (provided that the Required Lenders shall, subject to the consent of the Borrower unless an Event of Default or a Prepayment Event shall have occurred and be continuing (such consent not to be unreasonably withheld or delayed) offer to each of the other Lenders in turn, in the order of their respective Percentages of the Loan, the right to become successor Facility Agent). If no successor Facility Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the Facility Agent’s giving notice of resignation, then the Facility Agent may, on behalf of the Lenders, appoint a successor Facility Agent, which shall be one of the Lenders or a commercial banking institution having a combined capital and surplus of at least $1,000,000,000 (or the equivalent in other currencies), subject, in each case, to the consent of the Borrower (such consent not to be unreasonably withheld). Upon the acceptance of any appointment as Facility Agent hereunder by a successor Facility Agent, such successor Facility Agent shall be entitled to receive from the resigning Facility Agent such documents of transfer and assignment as such successor Facility Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the resigning Facility Agent, and the resigning Facility Agent shall be discharged from its duties and obligations under this Agreement. After any resigning Facility Agent’s resignation hereunder as the Facility Agent, the provisions of:
a)    this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Facility Agent under this Agreement; and
b)    Section 11.3 and Section 11.4 shall continue to inure to its benefit.
If a Lender acting as the Facility Agent assigns its Loan to one of its Affiliates, such Facility Agent may, subject to the consent of the Borrower (such consent not to be unreasonably withheld or delayed) assign its rights and obligations as Facility Agent to such Affiliate.
Section 10.6.    LOANS BY THE FACILITY AGENT. The Facility Agent shall have the same rights and powers with respect to the Loan made by it or any of its Affiliates. The Facility Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Affiliate of the Borrower as if the Facility Agent were
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not the Facility Agent hereunder and without any duty to account therefor to the Lenders. The Facility Agent shall have no duty to disclose information obtained or received by it or any of its Affiliates relating to the Borrower or its Subsidiaries to the extent such information was obtained or received in any capacity other than as the Facility Agent.
Section 10.7.    CREDIT DECISIONS. Each Lender acknowledges that it has, independently of each Agent and each other Lender, and based on such Lender’s review of the financial information of the Obligors, this Agreement, the other Loan Documents (the terms and provisions of which being satisfactory to such Lender) and such other documents, information and investigations as such Lender has deemed appropriate, made its own credit decision to extend its Commitment. Each Lender also acknowledges that it will, independently of each Agent and each other Lender, and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under this Agreement or any other Loan Document.
Section 10.8.    COPIES, ETC. Each Agent shall give prompt notice to each Lender of each notice or request required or permitted to be given to such Agent by the Borrower pursuant to the terms of this Agreement (unless concurrently delivered to the Lenders by the Borrower). Each Agent will distribute to each Lender each document or instrument received for its account and copies of all other communications received by such Agent from the Borrower for distribution to the Lenders by such Agent in accordance with the terms of this Agreement.
Section 10.9.    THE AGENTS’ RIGHTS. Each Agent may (i) assume that all representations or warranties made or deemed repeated by the Obligors in or pursuant to this Agreement or any Loan Document are true and complete, unless, in its capacity as the Facility Agent, it has acquired actual knowledge to the contrary, (ii) assume that no Default has occurred unless, in its capacity as an Agent, it has acquired actual knowledge to the contrary, (iii) rely on any document or notice believed by it to be genuine, (iv) rely as to legal or other professional matters on opinions and statements of any legal or other professional advisers selected or approved by it, (v) rely as to any factual matters which might reasonably be expected to be within the knowledge of the Borrower on a certificate signed by or on behalf of the Borrower and (vi) refrain from exercising any right, power, discretion or remedy unless and until instructed to exercise that right, power, discretion or remedy and as to the manner of its exercise by the Lenders (or, where applicable, by the Required Lenders) and unless and until such Agent has received from the Lenders any payment which such Agent may require on account of, or any security which such Agent may require for, any costs, claims, expenses (including legal and other professional fees) and liabilities which it considers it may incur or sustain in complying with those instructions.
Section 10.10.    THE FACILITY AGENT’S DUTIES. The Facility Agent shall (i) if requested in writing to do so by a Lender, make enquiry and advise the Lenders as to the performance or observance of any of the provisions of this Agreement or any Loan Document by the Borrower or as to the existence of an Event of Default and (ii) inform the Lenders promptly of any Event of Default of which the Facility Agent has actual knowledge.
The Facility Agent shall not be deemed to have actual knowledge of the falsehood or incompleteness of any representation or warranty made or deemed repeated by the Obligors or
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actual knowledge of the occurrence of any Default unless a Lender or the Borrower shall have given written notice thereof to the Facility Agent in its capacity as the Facility Agent. Any information acquired by the Facility Agent other than specifically in its capacity as the Facility Agent shall not be deemed to be information acquired by the Facility Agent in its capacity as the Facility Agent.
The Facility Agent may, without any liability to account to the Lenders, generally engage in any kind of banking or trust business with the Borrower or with the Borrower’s Subsidiaries or associated companies or with a Lender as if it were not the Facility Agent.
Section 10.11.    EMPLOYMENT OF AGENTS. In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to this Agreement or the Loan Documents, each Agent shall be entitled to employ and pay agents to do anything which such Agent is empowered to do under or pursuant to this Agreement or the Loan Documents (including the receipt of money and documents and the payment of money); provided that, unless otherwise provided herein, including without limitation Section 11.3, the employment of such agents shall be for such Agent’s account, and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by such Agent in good faith to be competent to give such opinion, advice or information.
Section 10.12.    DISTRIBUTION OF PAYMENTS. The Facility Agent shall pay promptly to the order of each Lender that Lender’s Percentage share of every sum of money received by the Facility Agent pursuant to this Agreement or the Loan Documents (including, without limitation, any amounts payable pursuant to Section 4.4.1 but not including any amounts payable pursuant to the Fee Letter and any amounts which, by the terms of this Agreement or the Loan Documents, are paid to the Facility Agent for the account of the Facility Agent alone or specifically for the account of one or more Lenders) and until so paid such amount shall be held by the Facility Agent on trust absolutely for that Lender.
Section 10.13.    REIMBURSEMENT. The Facility Agent shall have no liability to pay any sum to a Lender until it has itself received payment of that sum. If, however, the Facility Agent does pay any sum to a Lender on account of any amount prospectively due to that Lender pursuant to Section 10.12 before it has itself received payment of that amount, and the Facility Agent does not in fact receive payment within two (2) Business Days after the date on which that payment was required to be made by the terms of this Agreement or the Loan Documents, that Lender will, on demand by the Facility Agent, refund to the Facility Agent an amount equal to the amount received by it, together with an amount sufficient to reimburse the Facility Agent for any amount which the Facility Agent may certify that it has been required to pay by way of interest on money borrowed to fund the amount in question during the period beginning on the date on which that amount was required to be paid by the terms of this Agreement or the Loan Documents and ending on the date on which the Facility Agent receives reimbursement.
Section 10.14.    INSTRUCTIONS. Where an Agent is authorized or directed to act or refrain from acting in accordance with the instructions of the Lenders or of the Required Lenders each of the Lenders shall provide such Agent with instructions within three (3) Business Days of such Agent’s request (which request may be made orally or in writing). If a Lender does not provide
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such Agent with instructions within that period, that Lender shall be bound by the decision of such Agent. Nothing in this Section 10.14 shall limit the right of such Agent to take, or refrain from taking, any action without obtaining the instructions of the Lenders or the Required Lenders if such Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Lenders under or in connection with this Agreement or the Loan Documents. In that event, such Agent will notify the Lenders of the action taken by it as soon as reasonably practicable, and the Lenders agree to ratify any action taken by the Facility Agent pursuant to this Section 10.14.
Section 10.15.    PAYMENTS. All amounts payable to a Lender under this Section 10 shall be paid to such account at such bank as that Lender may from time to time direct in writing to the Facility Agent.
SECTION 10.16.    “KNOW YOUR CUSTOMER” CHECKS. Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in this Agreement or the Loan Documents.
Section 10.17.    NO FIDUCIARY RELATIONSHIP. Except as provided in Section 10.12, no Agent shall have any fiduciary relationship with or be deemed to be a trustee of or for any other person and nothing contained in this Agreement or any Loan Document shall constitute a partnership between any two or more Lenders or between either Agent and any other person.
Section 10.18.    ILLEGALITY. The Agent shall refrain from doing anything which it reasonably believes would be contrary to any law of any jurisdiction (including but not limited to England and Wales, the United States of America or any jurisdiction forming part of it) or any regulation or directive of any agency of such state or jurisdiction or which would or might render it liable to any person and may without liability do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
ARTICLE XI

MISCELLANEOUS PROVISIONS
Section 11.1.    WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrower and the Required Lenders; provided that no such amendment, modification or waiver which would:
a)    contravene or be in breach of the terms of the BpiFAE Insurance Policy or the arrangements with Natixis DAI relating to the CIRR (if the Fixed Rate applies) shall be effective unless consented to by, as applicable, BpiFAE and/or Natixis DAI;

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b)    modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
c)    modify this Section 11.1 or change the definition of “Required Lenders” shall be made without the consent of each Lender;
d)    increase the Commitment of any Lender shall be made without the consent of such Lender;
e)    reduce any fees described in Article III payable to any Lender shall be made without the consent of such Lender;
f)    extend the Commitment Termination Date of any Lender shall be made without the consent of such Lender;
g)    extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on the Loan (or reduce the principal amount of or rate of interest on the Loan) owed to any Lender shall be made without the consent of such Lender; or
h)    affect adversely the interests, rights or obligations of the Facility Agent in its capacity as such shall be made without consent of the Facility Agent.
No failure or delay on the part of the Facility Agent or any Lender in exercising any power or right under this Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by any the Facility Agent or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The Lenders hereby agree, at any time and from time to time that the Nordea Agreement or the Bank of Nova Scotia Agreement is amended or refinanced, to negotiate in good faith to amend this Agreement to conform any representations, warranties, covenants or events of default in this Agreement to the amendments made to any substantively comparable provisions in the Nordea Agreement or the Bank of Nova Scotia Agreement or any refinancing thereof.
Neither the Borrower’s rights nor its obligations under the Loan Documents shall be changed, directly or indirectly, as a result of any amendment, supplement, modification, variance or novation of the BpiFAE Insurance Policy, except any amendments, supplements, modifications, variances or novations, as the case may be, which occur (i) with the Borrower’s consent, (ii) at the Borrower’s request or (iii) in order to conform to amendments, supplements, modifications, variances or novations effected in respect of the Loan Documents in accordance with their terms.
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Section 11.2.    NOTICES.
a)    All notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing, by facsimile or by electronic mail and addressed, delivered or transmitted to such party at its address, facsimile number or electronic mail address set forth below its signature hereto or set forth in the Lender Assignment Agreement or at such other address, or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient.
b)    So long as Citibank Europe plc, UK Branch is the Facility Agent, the Borrower may provide to the Facility Agent all information, documents and other materials that it furnishes to the Facility Agent hereunder or any other Loan Document (and any guaranties, security agreements and other agreements relating thereto), including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing advance or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due hereunder or any other Loan Document prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of the Agreement and/or any advance or other extension of credit hereunder (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Facility Agent to such email address notified by the Facility Agent to the Borrower; provided that any Communication requested pursuant to Section 7.1.1(h) shall be in a format acceptable to the Borrower and the Facility Agent.
c)    The Borrower agrees that the Facility Agent may make such items included in the Communications as the Borrower may specifically agree available to the Lenders by posting such notices, at the option of the Borrower, on Intralinks or any similar such platform (the “Platform”) acceptable to the Borrower. Although the primary web portal is secured with a dual firewall and a User ID/Password Authorization System and the Platform is secured through a single user per deal authorization method whereby each user may access the Platform only on a deal-by-deal basis, the Borrower acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Facility Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code
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defects, is made by the Facility Agent or any of its Affiliates in connection with the Platform.
d)    The Facility Agent agrees that the receipt of Communications by the Facility Agent at its e-mail address set forth above shall constitute effective delivery of such Communications to the Facility Agent for purposes hereunder and any other Loan Document (and any guaranties, security agreements and other agreements relating thereto).
Section 11.3.    PAYMENT OF COSTS AND EXPENSES. The Borrower agrees to pay on demand all reasonable expenses of the Facility Agent (including the reasonable fees and out-of-pocket expenses of counsel to the Facility Agent and of local counsel, if any, who may be retained by counsel to the Facility Agent) in connection with any amendments, waivers, consents, supplements or other modifications to, this Agreement or any other Loan Document as may from time to time hereafter be required, whether or not the transactions contemplated hereby are consummated. The Borrower further agrees to pay, and to save the Facility Agent and the Lenders harmless from all liability for, any stamp, recording, documentary or other similar taxes arising from the execution, delivery or enforcement of this Agreement or the borrowing hereunder or any other Loan Documents. The Borrower also agrees to reimburse the Facility Agent and each Lender upon demand for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and legal expenses) incurred by the Facility Agent or such Lender in connection with (x) the negotiation of any restructuring or “work-out”, whether or not consummated, of any Obligations and (y) the enforcement of any Obligations.
Section 11.4.    INDEMNIFICATION. In consideration of the execution and delivery of this Agreement by each Lender and the extension of the Commitments, the Borrower hereby indemnifies and holds harmless the Facility Agent, each Lender and each of their respective Affiliates and their respective officers, advisors, directors and employees (collectively, the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case arising out of or in connection with or by reason of this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby or any actual or proposed use of the proceeds of the Loans (collectively, the “Indemnified Liabilities”), except to the extent such claim, damage, loss, liability or expense is found in a final, non- appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct or the material breach by such Indemnified Party of its obligations under this Agreement, any other Loan Document, the BpiFAE Insurance Policy or Interest Stabilisation Agreement and which breach is not attributable to the Borrower’s own breach of the terms of this Agreement or any other Loan Document or is a claim, damage, loss, liability or expense which would have been compensated under other provisions of the Loan Documents but for any exclusions applicable thereunder.
In the case of an investigation, litigation or other proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its directors, security holders or creditors, an Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto. Each
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Indemnified Party shall (a) furnish the Borrower with prompt notice of any action, suit or other claim covered by this Section 11.4, (b) not agree to any settlement or compromise of any such action, suit or claim without the Borrower’s prior consent, (c) 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) and (d) at the Borrower’s request, permit the Borrower to assume control of the defense of any such claim, other than regulatory, supervisory or similar investigations, provided that (i) the Borrower acknowledges in writing its obligations to indemnify the Indemnified Party in accordance with the terms herein in connection with such claims, (ii) the Borrower shall keep the Indemnified Party fully informed with respect to the conduct of the defense of such claim, (iii) the Borrower shall consult in good faith with the Indemnified Party (from time to time and before taking any material decision) about the conduct of the defense of such claim, (iv) the Borrower shall conduct the defense of such claim properly and diligently taking into account its own interests and those of the Indemnified Party, (v) the Borrower shall employ counsel reasonably acceptable to the Indemnified Party and at the Borrower’s expense, and (vi) the Borrower shall not enter into a settlement with respect to such claim unless either (A) such settlement involves only the payment of a monetary sum, does not include any performance by or an admission of liability or responsibility on the part of the Indemnified Party, and contains a provision unconditionally releasing the Indemnified Party and each other indemnified party from, and holding all such persons harmless, against, all liability in respect of claims by any releasing party or (B) the Indemnified Party provides written consent to such settlement (such consent not to be unreasonably withheld or delayed). Notwithstanding the Borrower’s election to assume the defense of such action, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such action and the Borrower shall bear the fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Borrower to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Borrower and the Indemnified Party and the Indemnified Party shall have concluded that there may be legal defenses available to it which are different from or additional to those available to the Borrower and determined that it is necessary to employ separate counsel in order to pursue such defenses (in which case the Borrower shall not have the right to assume the defense of such action on the Indemnified Party’s behalf), (iii) the Borrower shall not have employed counsel reasonably acceptable to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action, or (iv) the Borrower authorizes the Indemnified Party to employ separate counsel at the Borrower’s expense. The Borrower acknowledges that none of the Indemnified Parties shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Borrower or any of its security holders or creditors for or in connection with the transactions contemplated hereby, except to the extent such liability is determined in a final non- appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct. In no event, however, shall any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings). If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
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Section 11.5.    SURVIVAL. The obligations of the Borrower under Sections 4.3, 4.4, 4.5, 4.6, 4.7, 11.3 and 11.4 and the obligations of the Lenders under Section 10.1, shall in each case survive any termination of this Agreement and the payment in full of all Obligations. The representations and warranties made by the Borrower in this Agreement and in each other Loan Document shall survive the execution and delivery of this Agreement and each such other Loan Document.
Section 11.6.    SEVERABILITY. Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or such Loan Document or affecting the validity or enforceability of such provision in any other jurisdiction.
Section 11.7.    HEADINGS. The various headings of this Agreement and of each other Loan Document are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or such other Loan Document or any provisions hereof or thereof.
Section 11.8.    EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. This Agreement, as a novated and amended Agreement, shall become effective upon the occurrence of the Effective Time under, and as defined in, the Novation Agreement.
Section 11.9.    THIRD PARTY RIGHTS. Notwithstanding the provisions of the Contracts (Rights of Third Parties) Act 1999, no term of this Agreement is enforceable by a person who is not a party to it with the exception of BpiFAE and Natixis.
Section 11.10.    SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided that:
a)    except to the extent permitted under Section 7.2.6, the Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of the Facility Agent, each Lender and BpiFAE; and
b)    the rights of sale, assignment and transfer of the Lenders are subject to Section 11.11.
Section 11.11.    SALE AND TRANSFER OF THE LOAN; PARTICIPATIONS IN THE LOAN. Each Lender may assign its Percentage or portion of the Loan to one or more other Persons (a “New Lender”), or sell participations in its Percentage or portion of the Loan to one or more other Persons; provided that, in the case of assignments where the Fixed Rate applies, such New Lender (other than BpiFAE or CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, and subject as provided in Section 11.11.1(iv)) enters into an Interest Stabilisation Agreement.
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Section 11.11.1.    Assignments
i)    Any Lender with the prior written consents of the Borrower and the Facility Agent (which consents shall not be unreasonably delayed or withheld and which consent, in the case of the Borrower, shall be deemed to have been given in the absence of a written notice delivered by the Borrower to the Facility Agent, on or before the fifth Business Day after receipt by the Borrower of such Lender’s request for consent, stating, in reasonable detail, the reasons why the Borrower proposes to withhold such consent) may at any time (and from time to time) assign or transfer to one or more commercial banks or other financial institutions all or any fraction of such Lender’s portion of the Loan.
ii)    Any Lender, with notice to the Borrower and the Facility Agent, and, notwithstanding the foregoing clause (i), without the consent of the Borrower, or the Facility Agent may assign or transfer (A) to any of its Affiliates, (B) to SFIL or (C) following the occurrence and during the continuance of an Event of Default under Sections 8.1.1, 8.1.4(a) or 8.1.5, to any other Person, in each case, all or any fraction of such Lender’s portion of the Loan.
iii)    Any Lender may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign or charge all or any fraction of its portion of the Loan to any federal reserve or central bank as collateral security in connection with the extension of credit or support by such federal reserve or central bank to such Lender.
iv)    SFIL may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign, charge or otherwise grant security over all or any fraction of its portion of the Loan and of its rights as Lender to CAFFIL as collateral security in connection with the extension of credit or support by CAFFIL to SFIL in respect of this Agreement and the BpiFAE Enhanced Guarantee, provided that at the time of the assignment, charge or grant of security CAFFIL is an Affiliate of SFIL and that such assignment, charge or other security is on terms that (i) CAFFIL shall not have any rights to assign, charge or grant any security over such rights to any other person (other than to BpiFAE pursuant to and in accordance with the BpiFAE Enhanced Guarantee) without the prior written consent of the Borrower, (ii) CAFFIL shall only be entitled to enforce its rights under such assignment, charge or other security without the prior written consent of the Borrower if at that time it remains an Affiliate of SFIL, (iii) prior to any enforcement such assignment, charge or other security, the Borrower and the Facility Agent shall continue to deal solely and directly with SFIL in connection with its rights and obligations as Lender under this Agreement and other Loan Documents (subject to any payment instructions given by SFIL), (iv) for the avoidance of doubt, the Borrower’s rights and obligations under this Agreement shall not be increased or affected (including, without limitation, the right to pay Fixed Rate under Section 3.3.1) as a result of such assignment, charge or security or any enforcement thereof, (v) the Borrower shall not be liable to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay to SFIL had no such assignment, charge or other security been granted and (vi) without prejudice to SFIL’s obligations under
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that Section, CAFFIL shall be bound by the confidentiality provisions set forth in Section 11.15. in relation to any information to which it applies to the same extent as required of the Lenders. For the avoidance of doubt:
(A)    if CAFFIL becomes a Lender under this Agreement in respect of any portion of the Loan following enforcement of any assignment, charge or other security granted to it by SFIL pursuant to this Section 11.11.1(iv), it shall have the same rights to assign or transfer all or any fraction of such portion of the Loan on and subject to the same terms and conditions as are set forth in this Agreement for assignments and transfers by other Lenders and
(B)    CAFFIL may not enforce its rights under any such assignment, charge or other security by assigning or transferring all or any fraction of SFIL’s portion of the Loan or any of its rights or obligations under this Agreement or other Loan Documents except pursuant to an assignment or transfer to a commercial bank or other financial institution on and subject to the same terms and conditions as are set forth in this Agreement for assignments and transfers by Lenders.
v)    No Lender may (notwithstanding the foregoing clauses) assign or transfer any of its rights under this Agreement unless it has given prior written notification of the transfer to BpiFAE and (if the Loan is accruing interest at the Fixed Rate) Natixis DAI and has obtained a prior written consent from BpiFAE and Natixis DAI and any Assignee Lender (other than BpiFAE and CAFFIL as assignee of all or any of SFIL’s rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1(iv)) is, if the Fixed Rate applies, eligible to benefit from the CIRR stabilisation. Any assignment or transfer shall comply with the terms of the BpiFAE Insurance Policy.
vi)    Nothing in this Section 11.11.1 shall prejudice the right of the Lender to assign its rights under this Agreement to BpiFAE, if such assignment is required to be made by that Lender to BpiFAE in accordance with the BpiFAE Insurance Policy or the BpiFAE Enhanced Guarantee or, if the Lender is SFIL, to CAFFIL (but only if CAFFIL is, at that time, an Affiliate of SFIL) upon the enforcement of any security granted pursuant, and subject to the provisions of paragraph (iv) of Section 11.11.1, in connection with the BpiFAE Enhanced Guarantee.
Each Person described in the foregoing clauses as being the Person to whom such assignment or transfer is to be made, is hereinafter referred to as an “Assignee Lender”. Assignments in a minimum aggregate amount of $25,000,000 (or, if less, all of such Lender’s portion of the Loan and Commitment) (which assignment or transfer shall be of a constant, and not a varying, percentage of such Lender’s portion of the Loan) are permitted; provided that the Borrower and the Facility Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned or transferred to an Assignee Lender until:

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a)    written notice of such assignment or transfer, together with payment instructions, addresses and related information with respect to such Assignee Lender, shall have been given to the Borrower and the Facility Agent by such Lender and such Assignee Lender;
b)    such Assignee Lender shall have executed and delivered to the Borrower and the Facility Agent a Lender Assignment Agreement, accepted by the Facility Agent and any other agreements required by the Facility Agent or, if the Fixed Rate applies, Natixis in connection therewith; and
c)    the processing fees described below shall have been paid.
From and after the date that the Facility Agent accepts such Lender Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to have become a party hereto and to the extent that rights and obligations hereunder have been assigned or transferred to such Assignee Lender in connection with such Lender Assignment Agreement, shall have the rights and obligations of a Lender hereunder and under the other Loan Documents, and (y) the assignor Lender, to the extent that rights and obligations hereunder have been assigned or transferred by it, shall be released from its obligations hereunder and under the other Loan Documents, other than any obligations arising prior to the effective date of such assignment. Except to the extent resulting from a subsequent change in law, in no event shall the Borrower be required to pay to any Assignee Lender any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no such assignment been made. Such assignor Lender or such Assignee Lender must also pay a processing fee to the Facility Agent upon delivery of any Lender Assignment Agreement in the amount of $5,000 (and shall also reimburse the Facility Agent and Natixis for any reasonable out-of-pocket costs, including reasonable attorneys’ fees and expenses, incurred in connection with the assignment).
Section 11.11.2.    Participations. Any Lender may at any time sell to one or more commercial banks or other financial institutions (each of such commercial banks and other financial institutions being herein called a “Participant”) participating interests in its Loan; provided that:
a)    no participation contemplated in this Section 11.11.2 shall relieve such Lender from its obligations hereunder;
b)    such Lender shall remain solely responsible for the performance of its obligations hereunder;
c)    the Borrower and the Facility Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and each of the other Loan Documents;
d)    no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any
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Participant that such Lender will not, without such Participant’s consent, take any actions of the type described in clauses (b) through (f) of Section 11.1;
e)    the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no participating interest been sold; and
f)    each Lender that sells a participation under this Section 11.11.2 shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each of the Participant’s interest in that Lender’s portion of the Loan, Commitments or other interests hereunder (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender may treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes hereunder.
The Borrower acknowledges and agrees that each Participant, for purposes of Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and clause (e) of 7.1.1, shall be considered a Lender.
Section 11.11.3.    Register. The Facility Agent shall maintain at its address referred to in Section 11.2 a copy of each Lender Assignment Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment(s) of, and principal amount of the Loan owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Facility Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
Section 11.11.4.    Rights of BpiFAE to payments. The Borrower acknowledges that, immediately upon any payment by BpiFAE (i) of any amounts to a Lender under the BpiFAE Insurance Policy, BpiFAE will be automatically subrogated to the extent of such payment to the rights of that Lender under the Loan Documents or (ii) of any amount under the BpiFAE Enhanced Guarantee and the enforcement of any related security granted by SFIL to any of its Affiliates, which may benefit BpiFAE after payment by BpiFAE under the BpiFAE Enhanced Guarantee, BpiFAE will be automatically entitled to receive the payments normally due to SFIL under the Loan Documents( but, for the avoidance of doubt, such payments shall continue to be made by the Borrower to the Facility Agent in accordance with the provisions of Section 4.8 or any other relevant provisions of this Agreement, as applicable).
Section 11.12.    OTHER TRANSACTIONS. Nothing contained herein shall preclude the Facility Agent or any Lender from engaging in any transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or any of its Affiliates in which the Borrower or such Affiliate is not restricted hereby from engaging with any other Person.
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Section 11.13.    BPIFAE INSURANCE POLICY.
Section 11.13.1.    Terms of BpiFAE Insurance Policy
a)    The BpiFAE Insurance Policy will cover 100% of the Loan.
b)    The BpiFAE Premium will equal 3% of the aggregate principal amount of the Loan as at the Actual Delivery Date.
c)    If, after the Actual Delivery Date, the Borrower prepays all or part of the Loan in accordance with this Agreement, BpiFAE shall reimburse to the ECA Agent for the account of the Borrower an amount equal to 80% of all or a corresponding proportion of the unexpired portion of the BpiFAE Premium, having regard to the amount of the prepayment and the remaining term of the Loan, such amount to be calculated in accordance with the following formula:
R = P x (1 - (1 / (1+3%)) x (N / (12 * 365)) x 80%
where:
“R” means the amount of the refund;
“P” means the amount of the prepayment;
“N” means the number of days between the effective prepayment date and Final Maturity; and
P x (1 - (1 / (1+3%)) corresponds to the share of the financed BpiFAE Premium corresponding to P.
Section 11.13.2.    Obligations of the Borrower. Provided that the BpiFAE Insurance Policy complies with Section 11.13.1 and remains in full force and effect, the Borrower shall pay the balance of the BpiFAE Premium calculated in accordance with Section 11.13.1(b) and still owing to BpiFAE on the Actual Delivery Date to BpiFAE on the Actual Delivery Date by directing the Agent in the Loan Request to pay the Additional Advance in respect of the BpiFAE Premium directly to BpiFAE.
Section 11.13.3.    Obligations of the ECA Agent and the Lenders.
a)    Promptly upon receipt of the BpiFAE Insurance Policy from BpiFAE, the ECA Agent shall (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE Insurance Policy) send a copy thereof to the Borrower.
b)    The ECA Agent shall perform such acts or provide such information, which are, acting reasonably, within its power so to perform or so to provide, as required by BpiFAE under the BpiFAE Insurance Policy as necessary to ensure that the Lenders obtain the support of BpiFAE pursuant to the BpiFAE Insurance Policy.
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c)    Each Lender will co-operate with the ECA Agent, the Facility Agent and each other Lender, and take such action and/or refrain from taking such action as may be reasonably necessary, to ensure that the BpiFAE Insurance Policy and each Interest Stabilisation Agreement continues in full force and effect and shall indemnify and hold harmless each other Lender in the event that the BpiFAE Insurance Policy or such Interest Stabilisation Agreement (as the case may be) does not continue in full force and effect due to its gross negligence or willful default or due to a voluntary change in status which results in it no longer being eligible for CIRR interest stabilisation.
d)    The ECA Agent shall, in conjunction with the Facility Agent:
i)    make written requests to BpiFAE seeking a reimbursement of the BpiFAE Premium in the circumstances described in Section 11.13.1(c) promptly after the relevant cancellation or prepayment and (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE Insurance Policy) provide a copy of the request to the Borrower;
ii)    use its reasonable endeavours to seek any reimbursement of the BpiFAE Premium to which the ECA Agent is entitled;
iii)    pay to the Borrower (in the same currency as the refund received from BpiFAE) the full amount of any reimbursement of the BpiFAE Premium that the ECA Agent receives from BpiFAE within two (2) Business Days of receipt with same day value; and
iv)    relay the good faith concerns of the Borrower to BpiFAE regarding the amount of any reimbursement to which the ECA Agent is entitled, it being agreed that the ECA Agent’s obligation shall be no greater than simply to pass on to BpiFAE the Borrower’s concerns.
Section 11.14.    LAW AND JURISDICTION
Section 11.14.1.    Governing Law. This Agreement and any non- contractual obligations arising out of or in respect of this Agreement shall in all respects be governed by and interpreted in accordance with English Law.
Section 11.14.2.    Jurisdiction. For the exclusive benefit of the Facility Agent and the Lenders, the parties to this Agreement irrevocably agree that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and that any proceedings may be brought in those courts. The Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Section, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum.
Section 11.14.3.    Alternative Jurisdiction. Nothing contained in this Section shall limit the right of the Facility Agent or the Lenders to commence any proceedings against the Borrower in any other court of competent jurisdiction nor shall the commencement of any
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proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
Section 11.14.4.    Service of Process. Without prejudice to the right of the Facility Agent or the Lenders to use any other method of service permitted by law, the Borrower irrevocably agrees that any writ, notice, judgment or other legal process shall be sufficiently served on it if addressed to it and left at or sent by post to RCL Cruises Ltd., presently at Building 3, The Heights - Brooklands, Weybridge, Surrey, KT13 ONY, Attention: General Counsel, and in that event shall be conclusively deemed to have been served at the time of leaving or, if posted, at 9:00 am on the third Business Day after posting by prepaid first class registered post.
Section 11.15.    CONFIDENTIALITY. Each of the Facility Agent and the Lenders agrees to maintain and to cause its Affiliates to maintain the confidentiality of all information provided to it by the Borrower or any Subsidiary of the Borrower, or by the Facility Agent on the Borrower’s or such Subsidiary’s behalf, under this Agreement, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement or in connection with other business now or hereafter existing or contemplated with the Borrower or any Subsidiary, except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by it or its Affiliates or their respective directors, officers, employees and agents, or (ii) was or becomes available on a non-confidential basis from a source other than the Borrower or any of its Subsidiaries so long as such source is not, to its knowledge, prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Borrower or any of its Affiliates; provided, however, that it may disclose such information (A) at the request or pursuant to any requirement of any self-regulatory body, governmental body, agency or official to which the Facility Agent, any Lender or any of their respective Affiliates is subject or in connection with an examination of the Facility Agent, such Lender or any of their respective Affiliates by any such authority or body, including without limitation the Republic of France and any French Authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable requirement of law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Facility Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder; (F) to the Facility Agent or such Lender’s independent auditors, counsel, and any other professional advisors of the Facility Agent or such Lender who are advised of the confidentiality of such information; (G) to any participant or assignee, provided that such Person agrees to keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (H) as to the Facility Agent, any Lender or their respective Affiliates, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Borrower or any Subsidiary is party with the Facility Agent, such Lender or such Affiliate; (I) to its Affiliates and its Affiliates’ directors, officers, employees, professional advisors and agents, provided that each such Affiliate, director, officer, employee, professional advisor or agent shall keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (J) to any other party to the Agreement and (K) to the French Authorities and any Person to whom information is required to be disclosed by the French Authorities. Each of the Facility Agent and the Lenders shall be responsible for any breach of this Section 11.15 by any of its Affiliates or any of its or its Affiliates’ directors, officers, employees, professional advisors and agents.
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Section 11.16.    FRENCH AUTHORITY REQUIREMENTS. The Borrower acknowledges that:
a)    the Republic of France and any French Authority or any authorised representatives specified by these bodies shall be authorised at any time to inspect and make or demand copies of the records, accounts, documents and other deeds of any or all of the Lenders relating to this Agreement;
b)    in the course of its activity as the Facility Agent, the Facility Agent may:
i)    provide the Republic of France and any French Authority with information concerning the transactions to be handled by it under this Agreement; and
ii)    disclose information concerning the subsidized transaction contemplated by this Agreement in the context of internationally agreed consultation/notification proceedings and statutory specifications, including information received from the Lenders relating to this Agreement.
Section 11.17.    WAIVER OF IMMUNITY. To the extent that the Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its assets, the Borrower hereby irrevocably waives such immunity in respect of its obligations under this Agreement and the other Loan Documents.
Section 11.18.    ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF EEA FINANCIAL INSTITUTIONS. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of a Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
a)    the application of any Write-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
b)    the effects of any Bail-in Action on any such liability, including, if applicable:
i)    a reduction in full or in part or cancellation of any such liability;
ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
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iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any Resolution Authority.
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IN WITNESS WHEREOF, the parties hereto have caused this Hull No. C34 Credit 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            
Name:
Title:
Address:
1050 Caribbean Way
Miami, Florida 33132
Facsimile No.: (305) 539-0562 Email: agibson@rccl.com
bstein@rccl.com
Attention: Vice President, Treasurer
            With a copy to: General Counsel


106


Commitment
5.3479946973% of the
Maximum Loan Amount 		Citibank N.A., London Branch as Global Coordinator and a Lender

By            
    Name:    
    Title:    

Citigroup Centre Canada Square London E14
5LB United Kingdom

Attention:
Wei-Fong Chan
Kara Catt
Romina Coates
Antoine Paycha

Fax No: +44 20 7986 4881
Tel No: +44 20 7986 3036 /
+44 20 7508 0344
+44 20 7986 4824
+44 20 7500 0907 /

E-mail:
weifong.chan@citi.com
kara.catt@citi.com
romina.coates@citi.com
antoine.paycha@citi.com



107


Commitment
5.0254557412% of the
Maximum Loan Amount 		Banco Santander, S.A., Paris Branch as Lender

By            
    Name:
    Title:

Lending Office:
374 rue Saint Honoré 75001
Paris France
Operational address:
Ciudad Financiera
Avenida de Cantabria
s/n Edificio Encinar 2a
planta 28600 Boadilla
del Monte Spain
Attention:
Elise Regnault
Julián Arroyo
Angela Rabanal
Ecaterina Mucuta
Vanessa Berrio
Ana Sanz Gómez

Fax No: +34 91 257 1682
Tel No: +34 912893722 /
+1 212-297-2919
+1 212-297-2942
+33 1 53 53 70 46
+34 91 289 10 28
+34 91 289 17 90
E-mail:
elise.regnault@gruposantander.com Julian.Arroyo@santander.us arabanal@santander.us
Ecaterina.mucuta@gruposantander.com vaberrio@gruposantander.com anasanz@gruposantander.com MiddleOfficeParis@gruposantander.com



108

Commitment
3.9306454510% of the
Maximum Loan Amount
BNP PARIBAS as Lender
By            
    Name:
    Title:
Front Office to keep copied to all matters.
BNPP SA
37 RUE DU MARCHE SAINT HONORE
75001 PARIS
ACI :
CHC03B1
Alexandre de VATHAIRE /
Mauricio GONZALEZ alexandre.devathaire@bnpparibas.com mauricio.gonzalez@us.bnpparibas.com
Tel : 00 331 42 98 00 29/00 1212 841 38 88
Middle Office: For Operational / Servicing matters
KHALID BOUITIDA /
THIERRY ANEZO /
ESTELLE FARNEY
MILLENAIRE 4
35, RUE DE LA GARE
75019 PARIS
ACI :
CVA05A1
khalid.k.bouitida@bnpparibas.com thierry.anezo@bnpparibas.com
estelle.farny@bnpparibas.com
Tel : 00 331 42 98 58 69 / 00 331 43 16 81 57 / 01 40 14 59 84
Back Office : For Standard Settlement Instruction authentication/call-back

STEVE LOUISOR /
VALERIE DUMOULIN
MILLENAIRE 4
35, RUE DE LA GARE
75019 PARIS
ACI :
CVA03A1
paris.cib.boci.ca.3@bnpparibas.com valerie.dumoulin@bnpparibas.com steve.louisor@bnpparibas.com
ls1.loanservicinglisbon@bnpparibas.com
Tel : 00 331 55 77 91 86 / 00 331 40 14 46 59
109

Commitment
4.2645646367% of the
Maximum Loan Amount
HSBC Continental Europe as Lender

By            
    Name:
    Title:

HSBC Continental Europe - Global Banking Agency Operations (GBAO) Transaction Manager Unit
103 avenue des Champs Elysées
75008 Paris
France

Attention:
Florencia Thomas
Alexandra Penda
Fax No: +33 1 40 70 28 80
Tel No: +33 1 40 70 73 81 /
+33 1 41 02 67 50
Email: florencia.thomas@hsbc.fr alexandra.penda@hsbc.fr

Copy to:
HSBC Continental Europe
103 avenue des Champs Elysées
75008 Paris
France

Attention:
 Julie Bellais
Celine Karsenty
Fax No: +33 1 40 70 78 93
Tel No: +33 1 40 70 28 59 /
+ 33 1 40 70 22 97
Email: julie.bellais@hsbc.fr celine.karesenty@hsbc.fr


110


Commitment Société Générale as Lender
9.9328353079% of the
Maximum Loan Amount

By            
    Name:
    Title:

Société Générale Facility Office
29 Boulevard Haussmann
75009 Paris
France

For operational/servicing matters:
Bouchra BOUMEZOUED /
Tatiana BYCHKOVA
Société Générale 189, rue d’Aubervilliers 75886
PARIS CEDEX 18 OPER/FIN/CAF/DMT6
Phone: +33 1 57 29 13 12 / +33 1 58 98 43 05
Email: bouchra.boumezoued@sgcib.com tatiana.bychkova@sgcib.com
par-oper-caf-mt6@sgcib.com

For credit matters:
Francois ROLLAND /
Mohamed MEROUANE
Société Générale
189, rue d’Aubervilliers
75886
PARIS CEDEX 18 GBSU/FTB/SMO/EXT
Phone: +33 1 58 98 17 78 / +33 1 58 98 92 06

Email: list.par-gbsu-ftb-smo-ext-aom @sgcib.com





111


Commitment
2.7360453298% of the
Maximum Loan Amount
SMBC Bank International plc as ECA Agent and a Lender

By             
    Name:
    Title:

1/3/5 rue Paul Cézanne,
75008 Paris,
France
Attention:
Cedric Le Duigou
Guillaume Branco
Herve Billi
Claire Lucien
Helene Ly
Fax No: +33 1 44 90 48 01
Tel No:
Cedric Le Duigou: +33 1 44 90 48 83
Guillaume Branco: +33 1 44 90 48 71
Herve Billi: +33 1 44 90 48 48
Claire Lucien: +33 1 44 90 48 49
Helene Ly: +33 1 44 90 48 76

E-mail :
cedric_leduigou@fr.smbcgroup.com guillaume_branco@fr.smbcgroup.com herve_billi@fr.smbcgroup.com helene_ly@fr.smbcgroup.com claire_lucien@fr.smbcgroup.com



112

Commitment
68.7624588361% of the
Maximum Loan Amount
SFIL as Lender

By             
    Name:
    Title:

1-3, rue de Passeur de Boulogne - CS
80054
92861 Issy-les-Moulineaux Cedex 9
France

Contact Person
Loan Administration Department:
Direction du Crédit Export:
Pierre-Marie Debreuille / Anne Crépin
Direction des Opérations:
Dominique Brossard / Patrick Sick
Telephone:
Pierre-Marie Debreuille
+33 1 73 28 87 64
Anne Crépin +33 1 73 28 88 59
Dominique Brossard +33 1 73 28 91 93
Patrick Sick +33 1 73 28 87 66

Email:
pierre-marie.debreuille@sfil.fr
anne.crepin@sfil.fr
dominique.brossard@sfil.fr
patrick.sick@sfil.fr
refinancements-export@sfil.fr
creditexport_ops@sfil.fr
Fax: + 33 1 73 28 85 04



113

Citibank Europe plc, UK Branch as Facility Agent

    
By            
    Name:
    Title:

5th Floor Citigroup
Centre Mail drop CGC2 05-65
25 Canada Square Canary Wharf
London E14 5LB
U.K.
Fax no.: +44 20 7492 3980
Attention: EMEA Loans Agency







114


Annex A

Framework



"DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS

Please note that this is a non-binding document which remains subject to changes and additional requests. Decisions will be taken on a case-by-case basis.

Preamble

The Corona-pandemic continues to heavily affect the global tourism industry, including all cruise ship operators (“Companies”, a cruise operator the “Company” - including, if any, the guarantor and/or the holding company and/or the group). Almost all cruise ship operations are still suspended with various “no-sail orders” still in place.

As the cruise ship operations are still largely suspended, several cruise ship operators are expected to require an extension of the existing debt deferral initiative. The European ECAs (“ECAs”) intend to provide a coordinated response to these requests on a pan-European basis.

This document sets out the key principles (the “Terms and Conditions”) of a framework for a debt deferral extension of principal repayments and testing of financial covenants (the “Debt Deferral Extension” or “DDFE”) for already executed ECAs covered loan agreements (“Loan Agreement”) in connection with the financing of cruise vessels.

The terms of the Debt Deferral Extension are preliminary and informative in nature and shall not be deemed to be binding nor shall they represent any commitment by the ECAs in respect thereof. All Companies that are not already in formal debt restructuring proceedings can apply for the Debt Deferral Extension. ECAs are available to evaluate granting of the Debt Deferral Extension on a case by case basis subject to specific terms and conditions to be agreed upon with any of the Companies and nonetheless subject to approval by the respective ECAs competent bodies.

The European ECAs jointly are providing unilateral support to the cruise industry, for the benefit of the yards and the supply chain associated, by providing an extension to the initial temporary relief already given to the Companies, by deferring principal payments falling due from 1st April 2021 to 31st March 2022.

Such support is based on the firm mutual understanding that the Companies, taking advantage of the Debt Deferral Extension, sha l use their best endeavours fulfilling their contractual obligations under their existing shipbuilding contracts with the yard, i.e. do not unreasonably, unduly, and without consultation delay instalments and scheduled vessel deliveries and work in good faith with the yards to resolve any crisis-related construction delays. In particular, the Companies should avoid to cancel existing orders, either already effective and to become effective in the future.

Furthermore, the ECAs believe this initiative to be an important step to safeguard and strengthen the financial position of the Companies. Such support may enable the Companies in dealing with other existing creditors or bondholders in order to receive similar relief. In addition, it is our firm expectation that the Companies engage intensively with their respective shareholders and potential new shareholders to provide all possible support. It is the ECAs understanding that all relevant and involved stakeholders contribute to the efforts of stabilising the liquidity situation of the Companies during the current difficult market conditions in order to avoid formal debt restructuring proceedings. Such shareholders’ and debtholders support will be a major element in the evaluation and decision-making process.

All Companies have implemented liquidity initiatives by raising substantial liquidity throughout the crisis to face the halt of their operations and they will continue to do so if so requested. The ECAs are providing their support on the assumption that the Companies are still in an overall sound financial position and their business model is still well founded, so that as soon as the current travel restrictions will be discharged, the Companies will be able to resume “business as usual” and meet their future financial obligations.


    


"DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS


1.    Generic Terms&Conditions of the Debt Deferral Extension

1.1    Deferred Payments on ECA-covered debt

1.1.1    Debt Deferral shall be extended to all principal payments under the original ECA loans and the Existing Deferral Tranche payable between 1st April 2021 and 31st March 2022 ("New Deferred Payments"). The New Deferred Payments shall be expected to be documented and administered as an additional Debt Deferral Tranche (“New Debt Deferral Tranche”).
1.1.2    The repayment schedules of the previously agreed deferred payments until 31.03.2021 (“Existing Deferral Tranche”) and the repayment schedule of the Original Loan will remain unchanged. The repayments under both repayment schedules which are due between 1st April 2021 and 31st March 2022 shall be covered by drawings under the New Debt Deferral Tranche.
1.1.3    The New Debt Deferral Tranche shall be repaid within 5 years starting from April 1st 2022, if commercially feasible on the same due dates as the originally scheduled payments, until 31.03.2027, irrespective of remaining tenor of each individual export financing and subject to 1.1.6 below.
1.1.4    Interest (floating or fixed; commitment fee on undisbursed amounts) and any scheduled ECA premium payments shall continue to be payable.
1.1.5    ECA cover remains effective and extended also on New Deferred Payments. ECAs coverage on any potential additional interest margin arising from the New Debt Deferral Tranche will be at discretion of each ECAs.
1.1.6    In the event that the payment of New Deferred Payments on the same due dates as the originally scheduled payments will result not feasible or advisable for the ECAs, repayment schedule of New Deferred Payments may be determined individually on the basis of a case-by- case examination by the ECA (for example the maturity date under the existing ECA financing (as amended by the Existing Debt Deferral) is less than the theoretical final maturity of the New Debt Deferral Tranche.

1.2    Suspension of Financial Covenant Testing

1.2.1    Testing of all agreed Financial Covenants (in disbursed and undisbursed facilities) shall continue to be suspended until 31.03.2022 ("Testing Suspension" with non-compliance does not trigger an Event of Default).
1.2.2    Over the next 18 months, the financing banks and ECAs shall have the right / option to trigger on their own discretion the negotiation to reset the individual financial covenants of a Company. The basic idea behind is that a corridor for the financial covenants shall be set for the coming years as soon the operational performance is in a ramp-up phase and the financial visibility does improve.
1.2.3    Although Testing Suspension remains in place, reasonable minimum liquidity requirement shall apply, if the Company has no liquidity covenant in place, minimum liquidity covenants for Debt Deferral Extension shall be introduced (however, aligned with any relevant liquidity covenants included in other financings)

1.3    ECA Premium, Interest and Fees:

1.3.1    Additional upfront/one-off ECA premium on New Debt Deferral Tranche Payments ("Additional ECA Premium") shall apply.
1.3.2    Additional ECA Premium shall be calculated by each ECAs based on its evaluation of the Debt

    


"DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS

Holiday request.
1.3.3    Additional ECA Premium shall be due and payable at signing of the Debt Deferral Extension. The Additional ECA Premium is not refundable.
1.3.4    The Company shall bear any incurred adjustment on funding cost (CIRR and/or bank funding) for New Debt Deferral Tranche (for New Deferred Payments).
1.3.5    The Company shall agree on reasonable upfront and coordination fees, due and payable at signing of Debt Deferral Extension. A fee of the same amount than the one payable to the lenders may also be payable to the ECA, if the ECA so requests.
1.3.6    The Company shall bear any incurred legal and administrative cost to implement New Deferred Payments including but not limited to CIRR agreements.
1.3.7    In case there are several financings supported by different ECAs, the Company shall apply for the Debt Deferral Extension to all the ECAs. However, if the consent of the ECA lenders for one or more of these ECA financings is not obtained (due to the refusal of the ECA lenders of said financing), that should not prevent the Debt Deferral Extension to be implemented for the other ECA financings

2.    Undertakings
2.1    All conditions and undertakings of the Existing Debt Deferral shall remain in place, especially:
(i)    dividend restriction,
(ii)    mandatory redemption events,
(iii)    information covenant and monitoring
(iv)    specific ECA’s requirements (including, but not limited to, environmental covenant).

2.2    In particular, additional covenants will be added in the Debt Deferral Extension including but not limited to:

(i)    Any dividend payment, any share buy-back program or any other distribution or payment to share capital or shareholders (including repayment of shareholder loans), and/or
(ii)    new financing granted by the Company [(including inter-company loans)], and/or
(iii)    any non-arm length disposal of asset and/or
(iv)    any additional security in favour of existing debts (unless the ECA lenders benefit from this new security on a pari passu basis), and/or
(v)    any new regular debt or equity issue (such as bond or new equity emission) or other form of indebtedness by the Company
(vi)    any debt deferral or covenant waivers of existing debts, or any new debt raising intended to reimburse existing debt that benefit from additional securities or more favourable terms on existing security packages (unless they are granted to ECA lender on a pari passu basis),

shall trigger mandatory prepayment, to be made through an hard prepayment in a lump sum of any outstanding amount under the New Debt Deferral Tranche and immediate cessation of Testing Suspension, in any case subject to the provisions below.

2.3    Utilisation of the New Tranche shall be subject to proof of evidence of sufficient crisis-related liquidity measures by the Company, including equity, which shall be documented in the application process based on the Information Package (see paragraph 3.4. below).

2.4    During and until the end of the New Debt Deferral Tranche, the mandatory prepayment provision and the cessation of the Testing Suspension will not apply in relation to:

(i)    debt issuances by the Company due to financing of any scheduled ship building contract instalments, including, but not limited to, final instalment at delivery;
(ii)    (i) crisis and recovery related debt provided either (a) on unsecured basis and in accordance within the limitation provided under the documentation or (b) on secured basis if so requested
    


"DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS


by a State supported arrangement and in any case within the limitation provided under the documentation or
(ii)    equity issuances by the Company
in both cases (i) and (ii) made until 31 December 2021;

(iii)    after 31 December 2021, crisis and recovery related debt or equity issuances by the Company made with the prior written consent of the ECA;
(iv)    extension (or renewal of) revolving credit facilities, with the prior consent of the ECA if any additional security shall be granted on this occasion.

2.5    Additional redemption mechanism

ECAs shall have the right to request mandatory redemption of Existing and New Deferred Payments if the Company wishes to redeem other commercial lenders and/or bondholders early (pari passu redemption). For the avoidance of doubt, the refinancing of debt or mandatory prepayments necessary to avoid an event of default ECAs will not request a pari passu redemption. Voluntary prepayment and/or cash sweep shall trigger a mandatory prepayment and drawstop of the Existing and New Debt Deferral Tranches, unless those are applied across the ECAS facilities under the New Debt Deferral Tranches.

2.6    Additional security

1.    The Company shall grant additional security or credit enhancements to ECA lenders (and consequently to the ECA) to be negotiated in good faith, if so requested by the ECAS. Without prejudice to paragraph 3.6(b) below with respect to new ECA financings, it is the ECAs firm understanding that additional securities will have to be provided on a pari passu basis to all the involved ECAs for any of the existing loan agreements.
2.    Additional Security may be requested by each and every ECA at their own sole discretion, in case such ECA is requested by the Company to support a new ECA financing in relation to any scheduled or new ship building contract, including the financing of new change orders and/or owner’s supplies.

2.7    Early Termination of New and Existing Debt Deferrals

If the Company and/or the obligors enters all-creditor and/or formal debt restructuring proceedings including but not limited to US Chapter 11 proceedings, all Deferred Payments of the Existing and the New Debt Deferral Tranche shall be void [or not effective] and the Company shall reimburse the ECAs financings according to original repayment schedule. For the avoidance of doubt, all sums deferred shall be immediately repaid and undrawn amounts under the Existing and New Debt Deferral Tranches shall be subject of a draw stop.


3.    Procedure for Debt Deferral Extension application

3.1    Each cruise operator ("Company" or the “Borrower” or the “Obligor”) may apply through its ECA- Agent bank, for the Debt Deferral Extension with each ECA for all its disbursed and undisbursed ECA-backed existing export financings. In one application, several financings can be bundled. Each Company shall apply Debt Deferral Extension also with CIRR Mandatory for all its disbursed ECA-backed CIRR export financings in an application via the respective CIRR-Agent bank.

3.2    The Facility Agent in coordination with ECA- and CIRR-Agent shall coordinate Lenders' consent immediately after Company launched application for Debt Deferral Extension. For the avoidance of doubt, ECA- and CIRR-approval shall be decided in a timely fashion based on prior ECA
    


"DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS


coordination.

3.3    Similar to Debt Deferral Application in Q2 2020 Company shall provide an updated information package as may be required by the relevant ECA based on its standardized template as described in the Annex.

3.4    The Borrower/Company/Obligor shall provide the following information:
(i)    Treatment of other (new) creditors during Debt Holiday 1.0
(ii)    Overview of already collected crisis liquidity
(iii)    Overview of already concluded and further planned equity measures

(iv)    Overview of any debt deferral already negotiated/agreed with other creditors as of the date of application for the Debt Deferral Extension and description of the steps which the Borrower/Company/Obligor intends to take in order to agree any additional debt deferral with other creditors, alongside the Debt Deferral Extension.
(v)    [Detailed information in relation to any security or additional security granted in favour of any class of creditors (lenders/financiers, bondholders or other relevant creditors) which has been created or agreed as of the date of application for the Debt Deferral Extension]
(vi)    [Exhaustive and detailed description of any financial covenant which has been included within the terms and conditions of any debt issuance carried out within [1 February 2020] and the date of application for the Debt Deferral Extension and/or included in financing agreement in place as of the same date]

(vii)    Detailed information of future repayment obligations over the repayment tenor of the Debt Deferral Extension.
(viii)    Presentation of previous and future measures to secure the situation of shipyards and their order books
(ix)    Status of the Application with other ECAs
(x)    Rough estimate of the Company’s economic contribution to the ECAs’ respective economic systems.
(xi)    Detailed cash flow projections (Management Base Case and Management Stress Case) to illustrate the positive impact of the Debt Deferral Extension (at least 5 years projection) plus additional stress case scenarios, if requested by the respective ECAs, including cases with no substantial and cash generating operations prior to 01.06.2021 and 01.10.2021. Projections shall demonstrate the ability of the Applicant to meet its payment obligations towards its creditors until the end of the New Debt Deferral Tranche repayment period.
(xii)    Agreed repayment schedule of New Debt Deferral Tranche for all affected financings.

3.5    The Company and any of the Insured Banks shall also provide information regarding their commercial exposure and the arrangements taken (or under negotiation) towards this Applicant’s commercial exposure.

3.6    The Application should also cover:
(a)    a declaration of the Company to use its best efforts to:
1.    enter into similar agreements or arrangements with other class of its creditors; and to
2.    finalize agreement which won’t put in jeopardy the ECAS position or the shipyard and
(b)    a confirmation that the application is sent to all the ECAs involved at once.
    


"DEBT DEFERRAL EXTENSION FRAMEWORK” FOR ECA-BACKED EXPORT FINANCINGS


Please refer to the Annex for the comprehensive list of information and monitoring process to be implemented.

    

Annex B
Debt Deferral Extension Regular Monitoring Requirements
Debt Deferral Extension - Regular Monitoring Requirements
Monitoring Period:
-    Starting point: approval
-    End: the expiry of the Financial Covenant Waiver Period, whereby the list of documents and frequency shall be reviewed and adjusted annually by the Facility Agent.

    

Rhythm Description
1. monthly
Reporting of the:
1.    Total Free Liquidity Position – def.: free cash + free undrawn credit lines;
2.    Free Net Liquidity Position – Total Free Liquidity Position minus all planned debt repayments
(bank loan, commercial papers, bonds) which are due within the following 6 months.;
3.    In case the Free Net Liquidity Position does decease to 6x the average of the monthly operational cash burn rate the ECA can decide on its own discretion whether a shorter reporting rhythm shall be implemented (e.g. weekly).;
4.    Description of additional measures implemented to increase the liquidity position (debt, mezzanine and equity measures) / Whereby details of the respective terms and conditions shall be included (e.g. securities, ranking), for easy reference an ongoing list would be preferred with (a) measures taken, (b) additional measures finalized in the respective month and (c) additional measures planned.;
5.    Description of of additional cost cutting measures implemented to reduce the outflow of liquidity (OPEX, CAPEX, Debt Deferrals etc.);
6.    Repayment or refinancing of existing debt
 
2. monthly
Cash Flow Projection of the cruise line on a monthly basis
The Projection means cash flow statements in excel format, complete with formulas, shall cover the following period:
1.    Actual figures: The current financial year (whereby at least 1 quarter with actual historical figures have to be included);
2.    Projection: At least the following 24 months starting from the respective current month
(including shut down period and recovery phase)
Cash Flow Projection showing:
1.    operating cash flow including and separately listed Cruise-Revenues (including but not limited to occupancy rate, ticket prices, capacity of the overall fleet, capacity of fleet in operation), Cruise-OPEX, other COGS, net customer deposits collection (providing details of deposit refund separately), working capital and SG&A;
2.    cash flow from investing activities (separately: detailing capex in vessels, general capex and disposals / In addition for information purposes the newbuilding capex which will be paid out of equity.),
3.    cash flow from financing activities (detailing proceeds from equity, proceeds from debt separated by type of funding and ECA facilities, debt repayments separately), etc.
4.    Interest expenses
Such Cash Flow Projection shall be accompanied by a descriptive Note of Assumptions which does include comments on:
1. Changes:
(i)    The main changes to the underlying assumptions with respect to revenue / cash collections and disbursement of operational costs and SG&A,
(ii)    The main changes to the underlying assumptions with respect to Debt Deferrals (with the ECA backed transactions or other class of creditors)

    

(iii) The main changes with respect to Major Capex (and such Equity payments in relation to Major Capex)
And in each case whether those changes are due to timing issues or more fundamental changes compared to the initial Test Scheme Template for the Debt Deferral Extension (if not previously disclosed), or the previous Liquidity Forecast.
2. Mitigants or additional liquidity measure that are incorporated in the Liquidity Forecast, or planned but not yet incorporated in the Liquidity Forecast.
 
3. monthly Testing of the applicable Minimum Liquidity Covenant according to the amended loan documentation
4. monthly
1.    Cash Burn Rate
2.    Cash Burn Rate adjusted to net deposits collection
3.    Net Liquidity position to Cash Burn rate
Def. Cash Burn rate means operating costs plus debt service plus capital expenditure (net of financing) Def. Cash Burn rate adjusted means operating costs plus debt service plus capital expenditure (net of financing) plus net deposits collection.
To be reported as long as the company achieves a positive (adj.) EBITDA after interest costs in two consecutive months
5. monthly
Booking Curve - Average ticket price and occupancy for the season 2021 and season 2022 including a comparison of both parameters at the same point in time for bookings in 2019 for the season 2020
Format tbd with the ECA Agent / Figures to be provided in table / split by quarter mandatory
6. monthly
Status of the fleet on a per vessel basis: Active vessels (+ occupancy level) / Vessels in layup / Vessels classified for sale
Fleet wide average of occupancy (incl. active and idle vessels)
7. monthly
Confirmation that no dividends have been declared / paid within the current month.
8. monthly
Development of the customer deposits:
1.    For cancelled cruises with starting dates in the past: Percentage of customers which requested a refund and percentage of those who re-booked or accepted a voucher.
2.    Overview of the amount of deposits which have been collected in connection with cruises in the next 4 quarters (split by quarter).
3.    Customer Deposits for cruises starting within the next 3 months
4.    Amount of collected deposits which are at risk to be refunded, based on the company’s own assumption of how many passengers of future cancelled cruises might choose a refund instead of a re-booking or a voucher.
 
9. monthly
Other Creditors and Debtors:
1.    Please state clearly whenever terms and conditions (amount, interest, tenor, maturity schedule and securities) of existing credit facilities (incl. other debt holiday agreements) have been amended which fall into the same class as the ECAs or other classes.
2.    How are generally unsecured and secured financings treated?
3.    How do the debtors (like credit card companies) currently act? Do creditors withhold payments?
4.    Other Creditors and Debtors: What is the company asking from the other creditors (e.g. Bondholder, LeaseCos, FactorCos etc.) and what is their response? Do the respective documentation include cross default clauses?
    

10
bi-
monthly
Update about the changes of signed building contracts
The ECA shall be updated about the company`s current plans to amend any building contract or about any upcoming negotiations with the national yard.
11
quarterly
Unaudited financial statements or management accounts (incl. P&L (incl. EBITDA), balance sheet and cash flow statement)
12
quarterly
Company shall provide the calculation of the financial covenants which currently are waived.
    



Annex C
Replacement covenants with effect from the Guarantee Release Date






Exhibit N
Replacement covenants with effect from the Guarantee Release Date


It is acknowledged and agreed, with effect from the Guarantee Release Date, this Agreement shall be amended as follows:

“incur” means to create, incur, assume, guarantee or otherwise become directly or indirectly liable and “incurred” or “incurrence” shall have a correlative meaning.

“Inherited Indebtedness” means any Indebtedness (other than any Indebtedness that would, following the acquisition or creation of the relevant Subsidiary, become Permitted Principal Subsidiary Indebtedness or Permitted Non-Principal Subsidiary Indebtedness) of any corporation that becomes a Subsidiary of the Borrower after the Guarantee Release 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 Indebtedness is in existence at the time such corporation becomes a Subsidiary of the Borrower and was not incurred by the Borrower or any of its Subsidiaries in anticipation thereof.

“Inherited Lien” means any Lien (other than a Lien that would, following the acquisition or creation of the relevant Subsidiary, become a Permitted Lien) in respect of any Inherited Indebtedness on any asset of any corporation that becomes a Subsidiary of the Borrower after the Guarantee Release 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.

“Non-Principal Subsidiary” means a Subsidiary other than a Principal Subsidiary.

“Permitted Principal Subsidiary Indebtedness” means:

a.    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower; and
b.    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes.
“Permitted Liens” means:

a.    Liens securing Government-related Obligations;
1


b.    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;
c.    Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue by more than 60 days or being diligently contested in good faith by appropriate proceedings;
d.    Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance or other forms of governmental insurance or benefits;
e.    Liens for current crew's wages and salvage;
f.    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;
g.    Liens on Vessels that:
(i)    secure obligations covered (or reasonably expected to be covered) by insurance;
(ii)    were incurred in the course of or incidental to trading such Vessel in connection with repairs or other work to such Vessel; or
(iii)    were incurred in connection with work to such Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;
provided that, in each case described in this clause (g), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;
h.    normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers' liens, rights of set-off or similar rights in favour of banks or other depository institutions;
i.    Liens in respect of rights of set-off, recoupment and holdback in favour of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business;
j.    Liens on cash or Cash Equivalents or marketable securities securing:
(i)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; or
2


(ii)    letters of credit that support such obligations;
k.    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
l.    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
m.    licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
n.    Liens on any property of Silversea identified in Section 2 of Exhibit F hereto,


“Permitted Non-Principal Subsidiary Indebtedness” means:

a.    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower;
b.    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; and
c.    other Indebtedness other than Indebtedness for borrowed money (it being agreed for this purpose that any Group Member Guarantee granted in connection with Indebtedness for borrowed money shall be considered to be Indebtedness for borrowed money).



3




1.    Sections 7.2.2 and 7.2.3 shall be deleted in their entirety and replaced with the following (and all other provisions and clause references shall be construed accordingly):
SECTION 7.2.2    Subsidiary Indebtedness and Liens.
(a)    With effect from the Guarantee Release Date and except to the extent permitted by Section 7.2.2(b) below:
(i)    the Borrower will not permit:
A.    any of its Principal Subsidiaries to incur any Indebtedness other than Permitted Principal Subsidiary Indebtedness; and
B.    any of its Non-Principal Subsidiaries to incur any Indebtedness other than Permitted Non-Principal Subsidiary Indebtedness; and
(ii)     the Borrower (having regard, in the case of any ECA Financed Vessel, to Section 7.2.10) will not, and will not permit any of its Subsidiaries to, permit to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired other than Permitted Liens.
(b)    Section 7.2.2(a) shall not, however, prohibit any Indebtedness or Lien provided that (but again having regard, in the case of any ECA Financed Vessel, to Section 7.2.10) immediately following the incurrence (including any Group Member Guarantees) of the Indebtedness or Lien (as applicable):
(i)    the sum of the aggregate principal amount (without duplication) of (x) Indebtedness incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness), (y) Indebtedness incurred by Non-Principal Subsidiaries (excluding Permitted Non-Principal Subsidiary Indebtedness) and (z) the Indebtedness secured by Liens (other than Permitted Liens) granted by any Group Member does not exceed 20.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
(ii)    in the event the Senior Debt Rating of the Borrower is at Investment Grade as given by either Moody’s and S&P (determined at the time of the incurrence of the Indebtedness or Lien), the sum of the aggregate principal amount (without duplication) of (x) Indebtedness incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness) and (y) the Indebtedness secured by Liens (excluding Permitted Liens) granted by any Group Member does not exceed 10.0% of the total assets of the Borrower and its Subsidiaries taken as
4


a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
(iii)     in the event the Senior Debt Rating of the Borrower is below Investment Grade as given by both Moody’s and S&P (determined at the time of creation of the Lien or the granting of a Group Member Guarantee (as applicable)):
A.    the aggregate principal amount of Indebtedness secured by first priority Liens (excluding Permitted Liens) granted by any Group Member does not exceed 5% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter;
B.    the aggregate principal amount of Indebtedness secured by second (or lower) priority Liens (excluding Permitted Liens) granted by any Group Member does not exceed 5% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; and
C.    the sum of the aggregate principal amount (without duplication) of (x) Indebtedness (including any Group Member Guarantees) incurred by Principal Subsidiaries (excluding Permitted Principal Subsidiary Indebtedness) and (y) Indebtedness secured by Liens (excluding Permitted Liens) granted by any Group Member pursuant to (iii)(A) and (B) above does not exceed 10.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter,
provided that if, following the Guarantee Release Date, the Borrower enters into a transaction which results in the existence of any Inherited Lien or Inherited Indebtedness, and solely as a result of that Inherited Lien (and the related Inherited Indebtedness secured by that Inherited Lien) or Inherited Indebtedness, the thresholds referred to in this paragraph (b) are exceeded, whilst no breach of this clause shall be deemed to have occurred at the time of such transaction, no further Indebtedness or Liens of the type referred to in this paragraph (b) shall be permitted to be incurred or, as the case may, permitted to exist until such time as the Borrower is in compliance with the thresholds referred to above (and taking into account for such purpose any unsecured Inherited Indebtedness or Inherited Indebtedness secured by any Inherited Lien).

2.    Section 7.2.3 shall be deleted in its entirety and replaced with “Intentionally Omitted”.

3.    A new Section 7.2.10 shall be inserted as follows:
5



SECTION 7.2.10    Negative Pledge Over ECA Financed Vessels.
For the purposes of this Section 7.2.10:
“repaid” means scheduled repayments or voluntary or mandatory prepayment and not repayments arising following the acceleration of the relevant ECA Financing after the occurrence of an Event of Default; and
“credit support” means a Lien over any ECA Financed Vessel granted by any Group Member or a Group Member Guarantee from a Group Member (other than the Borrower) that owns (directly or indirectly) any ECA Financed Vessel.
In connection with the granting of any Lien or Group Member Guarantee pursuant to Section 7.2.2(b) above, no Group Member shall use any ECA Financed Vessel as credit support in respect of any Indebtedness except:
(i)    if more than 75.0% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel has been repaid by the relevant Group Member, that Group Member shall be entitled to grant credit support over or in respect of that ECA Financed Vessel on the basis, and in compliance with the terms of, Section 7.2.2(b); and
(ii)    if an amount equal to or higher than 15.0% but less than or equal to 75% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel has been repaid by the relevant Group Member (determined at the time the relevant credit support is provided), the relevant Group Member shall be entitled to provide such credit support over that ECA Financed Vessel on the basis of, and subject to the compliance with, the terms of, Section 7.2.2(b), provided that the amount of Indebtedness secured or supported (as applicable) by that credit support shall not exceed an amount equal to FV x (A / B) where:
FV = the fair value of that ECA Financed Vessel at the time of the provision of that credit support (as evidenced by the information to be provided pursuant to sub-paragraph (v) below);
A = the aggregate principal amount of Indebtedness incurred under the ECA Financing in respect of that ECA Financed Vessel which has been repaid by the relevant Group Member at the time the credit support is provided; and
B = the amount of Indebtedness originally incurred by the relevant Group Member under the ECA Financing in respect of that ECA Financed Vessel,

6


it being acknowledged and agreed that:
(iii)    where the relevant credit support being provided in accordance with this Section 7.2.10 is a Group Member Guarantee from a Group Member that owns (directly or indirectly) one or more ECA Financed Vessels but does not own (directly or indirectly) any other Vessels, the amount of Indebtedness that can be supported by such Group Member Guarantee shall be equal to the aggregate amount of Indebtedness that would be permitted to be secured under this Section 7.2.10 if, instead of a Group Member Guarantee, each relevant Principal Subsidiary owning each relevant ECA Financed Vessel was to provide a Lien as credit support in respect of that Indebtedness;
(iv)     where the relevant credit support being provided in accordance with this Section 7.2.10 is a Group Member Guarantee from a Group Member that owns (directly or indirectly) one or more ECA Financed Vessels and other Vessels, the restrictions contained in this Section 7.2.10 as to the amount of the Indebtedness that can be supported by such credit support must be preserved at all times and, not later than five Business Days after the date upon which that Group Member grants the relevant Group Member Guarantee, the Borrower shall notify the Facility Agent in writing of such event and shall provide any information as may be reasonably requested by the Facility Agent to verify that the requirements of this Section 7.2.10 have been complied with following the provision of such Group Member Guarantee; and
(v)    not later than five Business Days after the date upon which a Group Member provides any credit support, the Borrower shall provide the Facility Agent with evidence as to its compliance with this Section 7.2.10, which evidence shall include all required calculations and other information required by the Facility Agent (acting reasonably) to determine such compliance; and
(vi)    no Group Member shall be entitled to use any ECA Financed Vessel as credit support in the manner contemplated by this Section 7.2.10:
(A)    until such time as the relevant Group Member has repaid at least 15.0% of the aggregate principal amount of Indebtedness originally incurred under the ECA Financing in respect of that ECA Financed Vessel; and/or
(B)    at any time in which a Default has occurred and is continuing.


7



SIGNATORIES
Amendment Agreement in respect of Hull C34
Existing Borrower
SIGNED by Jacobus Pietersen, Director
for and on behalf of
HIBISYEU FINANCE LIMITED
)
)
) 		/s/ Jacobus Pietersen
)
New Borrower
SIGNED by Antje M. Gibson, VP & Treasurer
for and on behalf of
ROYAL CARIBBEAN CRUISES LTD.
)
)
) 		/s/ Antje M. Gibson
)
Facility Agent
SIGNED by Claire Crawford
for and on behalf of
CITIBANK EUROPE PLC, UK BRANCH
)
)
) 		/s/ Claire Crawford
)
Security Trustee
SIGNED by Cristina Volc, Attorney
for and on behalf of
CITICORP TRUSTEE COMPANY LIMITED
)
)
)
/s/ Cristina Volc
)
Global Coordinator
SIGNED by David Graham, Director
for and on behalf of
CITIBANK N.A., LONDON BRANCH
)
)
) 		/s/ David Graham
)
The ECA Agent
SIGNED by Hervé Billi
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
) 		/s/ Hervé Billi
)
French Coordinating Bank
SIGNED by Julie Bellais / Guy Woelfel
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ Guy Woelfel

The Lenders
SIGNED by David Graham, Director
for and on behalf of
CITIBANK N.A., LONDON BRANCH
)
)
) 		/s/ David Graham
)
SIGNED by Julie Bellais / Guy Woelfe
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ Guy Woelfel
SIGNED by Alexandre de Vathaire, Export Finance-Origination EMEA-Managing Director France & UK / Georges Curey, Export Finance, Head of Transaction and CPM Teams EMEA
for and on behalf of
BNP PARIBAS
)
)
)
)
)
)
/s/ Alexandre de Vathaire
) /s/ Georges Curey
SIGNED by Alpa Shah / Masao Yokoyama
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
) 		/s/ Alpa Shah
) /s/ Masao Yokoyama
SIGNED by Valerie Mace
for and on behalf of
SOCIÉTÉ GÉNÉRALE
)
)
) 		/s/ Valerie Mace
)
SIGNED by PM Debreuille, Dírecteur Crédit Export / Emilie Boissier, Direction Crédit Export
for and on behalf of
SFIL
)
)
)
)
/s/ PM Debreuille
) /s/ Emilie Boissier
SIGNED by Caroline Pantaleao / Pierre Roserot de Melin
for and on behalf of
BANCO SANTANDER S.A., PARIS BRANCH
)
)
)
)
/s/ Caroline Pantaleao
) /s/ Pierre Roserot de Melin

    

The Mandated Lead Arrangers
SIGNED by David Graham, Director
for and on behalf of
CITIBANK N.A., LONDON BRANCH
)
)
) 		/s/ David Graham
)
SIGNED by Julie Bellais / Guy Woelfel
for and on behalf of
HSBC CONTINENTAL EUROPE
)
)
) 		/s/ Julie Bellais
)
/s/ Guy Woelfel
SIGNED by Caroline Pantaleao / Pierre Roserot de Melin
for and on behalf of
BANCO SANTANDER S.A., PARIS BRANCH
)
)
)
)
/s/ Caroline Pantaleao
) /s/ Pierre Roserot de Melin
SIGNED by Alexandre de Vathaire, Export Finance-Origination EMEA-Managing Director France & UK / Georges Curey, Export Finance, Head of Transaction and CPM Teams EMEA
for and on behalf of
BNP PARIBAS
)
)
)
)
)
)
/s/ Alexandre de Vathaire
) /s/ Georges Curey
SIGNED by Alpa Shah / Masao Yokoyama
for and on behalf of
SMBC BANK INTERNATIONAL PLC
)
)
) 		/s/ Alpa Shah
) /s/ Masao Yokoyama
SIGNED by Valerie Mace
for and on behalf of
SOCIÉTÉ GÉNÉRALE
)
)
) 		/s/ Valerie Mace
)


    

Exhibit 10.5
Dated    27 September 2021
    Silversea Cruise Holding Ltd.    (1)
    (the Original Borrower)
    Royal Caribbean Cruises Ltd.    (2)
    (the Guarantor)
    KfW IPEX-Bank GmbH    (3)
    (the Facility Agent)
    KfW IPEX-Bank GmbH    (4)
    (the Hermes Agent)
    The banks and financial institutions listed in Schedule 1    (5)
    (the Lenders)
Amendment No. 3 in connection with
the Credit Agreement in respect of
Hull S-719
IMAGE_02A.JPG




Contents
Clause    Page
1    Interpretation and definitions
2
2    Amendment of the Existing Credit Agreement
3
3    Conditions of effectiveness of Amended Credit Agreement
3
4    Representations and Warranties
5
5    Nomination of the Guarantor as Borrower
6
6    Accession of New Lenders
6
7    Incorporation of Terms
7
8    Fees, Costs and Expenses
7
9    Counterparts
8
10    Governing Law
8
Schedule 1 The Lenders
9
Schedule 2 Form of Amendment Effective Date confirmation – Hull S-719
10
Schedule 3 Amended and Restated Credit Agreement
11
Exhibit A Form of Loan Request
12
Exhibit B Table of Commitments
13



THIS AMENDMENT NO. 3 (this Amendment) is dated 27 September 2021 and made BETWEEN:
(1)    Silversea Cruise Holding Ltd. (a company incorporated and existing under the laws of the Bahamas) (the Original Borrower);
(2)    Royal Caribbean Cruises Ltd. (a corporation organised and existing under the laws of The Republic of Liberia) (the Guarantor);
(3)    KfW IPEX-Bank GmbH as facility agent (the Facility Agent);
(4)    KfW IPEX-Bank GmbH as Hermes agent (the Hermes Agent);
(5)    The banks and financial institutions listed in Schedule 1 as existing lenders (the Existing Lenders); and
(6)    The banks and financial institutions listed in Schedule 1 as new lenders (the New Lenders).
WHEREAS:
(A)    The Original Borrower, the Guarantor, the Facility Agent, the Hermes Agent and the Existing Lenders are parties to a credit agreement dated 19 September 2019 (as amended and restated from time to time, the Existing Credit Agreement), in respect of the vessel bearing Builder’s hull number S-719 (the Vessel) whereby it was agreed that the Existing Lenders would make available to the Original Borrower or (as contemplated by Section 2.6 (Nomination of Royal Caribbean Cruises Ltd. as Borrower) of the Existing Credit Agreement) the Guarantor, upon the terms and conditions therein, a US dollar loan facility (the Facility) up to the US Dollar Equivalent of EUR351,580,000 and calculated on the amount equal to the sum of (a) up to eighty per cent (80%) of the Contract Price of the Vessel but which Contract Price will not exceed EUR 526,800,000 and (b) up to 100% of the Hermes Fee.
(B)    The Original Borrower, the Guarantor and the Builder shall, on or prior to the Amendment Effective Date, enter into an addendum to the Construction Contract (the Addendum) pursuant to which it shall be agreed that the Contract Price shall be increased on the basis to be set out therein.
(C)    In connection with the arrangements referred to in Recital (B) above, the Parties have agreed to amend and restate the Existing Credit Agreement on the basis set out in this Amendment in order to reflect (i) an increase to the Commitments by an amount equal to 80% of the increased cost of the Vessel and 100% of the Additional Hermes Fee (as such term is defined in the Amended Credit Agreement) and (ii) the accession of the New Lenders as Lenders in respect of the relevant portion of the increased Commitments
(D)    The increased Commitments referred to in Recital (C) above shall be assumed by the New Lenders and certain of the Existing Lenders, and accordingly the New Lenders shall become Lenders for the purposes of the Amended Credit Agreement and shall accede to the Amended Credit Agreement on the basis set out in this Amendment.
(E)    The Parties have agreed that, as contemplated by Section 2.6 (Nomination of Royal Caribbean Cruises Ltd. as Borrower) of the Existing Credit Agreement, the Guarantor shall be nominated as the borrower under the Amended Credit Agreement from the date of this Amendment, and accordingly the Original Borrower will, with effect from the date of this Amendment, cease to be a party to, or to have any rights or obligations under, the Existing Credit Agreement and the Guarantor shall assume
    1

all rights and obligations of the Original Borrower under and in connection with the Existing Credit Agreement and, following the Amendment Effective Date, the Amended Credit Agreement.

NOW IT IS AGREED as follows:

1    Interpretation and definitions
1.1    Definitions in the Existing Credit Agreement
(a)    Unless the context otherwise requires or unless otherwise defined in this Amendment, words and expressions defined in the Existing Credit Agreement shall have the same meanings when used in this Amendment.
(b)    The principles of construction set out in the Existing Credit Agreement shall have effect as if set out in this Amendment.
1.2    Definitions
In this Amendment (including its recitals):
Amended Credit Agreement means the Existing Credit Agreement as amended and restated in accordance with this Amendment.
Amendment Effective Date has the meaning given to it in clause 3.
Fee Letter means any letter between the Facility Agent and the Guarantor, as borrower, setting out the fees payable in connection with this Amendment.
Finance Parties means the Facility Agent, the Hermes Agent and the Lenders.
Increase Commitment has the meaning given to it in the form of the Amended Credit Agreement set out in Schedule 3.
Increase Tranche has the meaning given to it in the form of the Amended Credit Agreement set out in Schedule 3.
Lenders has the meaning given to such term in the form of the Amended Credit Agreement set out in Schedule 3 and shall include the Existing Lenders and the New Lenders.
Party means each of the parties to this Amendment.
Security Enhancement Guarantor Confirmation Agreement means the agreement referred to in clause 3.1(b).
1.3    Third party rights
Other than KfW in respect of the rights of KfW under the Loan Documents, unless expressly provided to the contrary in a Loan Document, no term of this Amendment is enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.
1.4    Designation
Each of the Parties designates this Amendment as a Loan Document.
    2

2    Amendment of the Existing Credit Agreement
In consideration of the mutual covenants in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree that, subject to the satisfaction of the conditions precedent set forth in clause 3:
(a)    the Existing Credit Agreement (but without all its Exhibits which, other than in the case of Exhibit A thereto (which shall be replaced pursuant to paragraph (b) below), shall remain in the same form and continue to form part of the Existing Credit Agreement) is hereby amended on the Amendment Effective Date so as to read in accordance with the form of the amended and restated credit agreement set out in Schedule 3, which will, together with the Exhibits to the Existing Credit Agreement, continue to or, in the case of the New Lenders, shall be, binding upon each of the Parties in accordance with its terms as so amended and restated; and
(b)    Exhibit A hereto shall be attached to the Amended Credit Agreement in replacement of Exhibit A thereto and Exhibit B hereto shall be attached to the Amended Credit Agreement as a new Exhibit Q thereto.
3    Conditions of effectiveness of Amended Credit Agreement
3.1    The Amended Credit Agreement shall become effective in accordance with the terms of this Amendment on the date (the Amendment Effective Date) upon which each of the following conditions has been satisfied to the reasonable satisfaction of the Facility Agent:
(a)    the Facility Agent shall have received from the Original Borrower and the Guarantor:
(i)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Amendment and as to the truth and completeness of the attached resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Amendment (including the borrowing or guaranteeing (as applicable) of the Increase Commitment), and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the Original Borrower or the Guarantor (as applicable) cancelling or amending such prior certificate; and
(ii)    a Certificate of Good Standing issued by the relevant authorities in respect of the Original Borrower and the Guarantor;
(b)    the Facility Agent and each Security Enhancement Guarantor shall have entered into an agreement pursuant to which the Security Enhancement Guarantors shall acknowledge the amendments to the Existing Credit Agreement contained in this Amendment and:
(i)    agree that the relevant Security Enhancement Guarantee and each other Loan Document to which that Security Enhancement Guarantor is a party shall remain and continue in full force and effect notwithstanding the amendment and restatement of the Existing Credit Agreement;
(ii)    agree that the relevant Security Enhancement Guarantee and the Guaranteed Liabilities (as defined in the relevant Security Enhancement Guarantee) shall extend to any obligations of the Guarantor under the Amended Credit Agreement, including the
    3

obligations assumed by the Guarantor in connection with the nomination arrangements referred to in clause 5 below; and
(iii)    confirm that guaranteeing the obligations of the Guarantor (as borrower) does not cause any borrowing, guaranteeing or similar limit binding on the relevant Security Enhancement Guarantor to be exceeded,
and the Facility Agent shall have received evidence of the authority of the relevant signatory of each Security Enhancement Guarantor to execute the Security Enhancement Guarantor Confirmation Agreement;
(c)    the Facility Agent shall have received a duly executed copy of each Fee Letter;
(d)    the Facility Agent shall have received evidence that all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent) required to be paid by the Guarantor pursuant to clause 8 below, and all other documented fees and expenses that the Original Borrower or the Guarantor has otherwise agreed in writing to pay to the Facility Agent, have been paid or will be paid promptly upon being demanded;
(e)    the Facility Agent shall have received opinions, addressed to the Facility Agent (and capable of being relied upon by each Lender) from:
(i)    Higgs & Johnson, counsel to the Original Borrower, as to matters of Bahamian law (and being issued in substantially the same form as the corresponding Bahamian legal opinion issued in connection with the previous amendment to the Existing Credit Agreement);
(ii)    Watson Farley & Williams LLP, counsel to the Guarantor, as to matters of Liberian law (and being issued in substantially the same form as the corresponding Liberian legal opinion issued in connection with the previous amendment to the Existing Credit Agreement); and
(iii)    Norton Rose Fulbright LLP, counsel to the Facility Agent as to matters of English law (and being issued in substantially the same form as the corresponding English legal opinion issued in connection with the previous amendment to the Existing Credit Agreement); and
(iv)    Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Facility Agent as to matters of New York law in respect of the Security Enhancement Guarantor Confirmation Agreement,
or, where applicable, a written approval in principle (which can be given by email) by either of the above counsel of the arrangements contemplated by this Amendment and a confirmation that a formal opinion will follow promptly after the Amendment Effective Date;
(f)    the representations and warranties set out in clause 4 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a Material Adverse Effect (which shall be accurate in all respects)) as of the Amendment Effective Date;
    4

(g)    no Event of Default or Prepayment Event shall have occurred and be continuing or would result from the amendment of the Existing Credit Agreement pursuant to this Amendment;
(h)    the Original Borrower and the Guarantor shall, as required pursuant to clause 7, have provided a letter to the Facility Agent which confirms that RCL Cruises Ltd. has accepted its appointment as process agent in respect of this Amendment;
(i)    KfW has confirmed to the Facility Agent that all relevant Existing Lenders have executed (i) respective amendments to their Option A Refinancing Agreements required in connection with the arrangements contemplated by this Amendment and (ii) any replacement security documents required to be entered into between the Existing Lenders and KfW pursuant to the terms of such amended Option A Refinancing Agreements, and any relevant legal opinions required by KfW in connection with such arrangements have been issued;
(j)    KfW has confirmed to the Facility Agent that all New Lenders have executed (i) Option A Refinancing Agreements in respect of their participation in the Increase Tranche and (ii) any security documents required to be entered into between the New Lenders and KfW pursuant to the terms of such Option A Refinancing Agreements, and any relevant legal opinions required by KfW in connection with such arrangements have been issued;
(k)    the Facility Agent shall have received from Hermes an approval in principle that the Hermes Insurance Policy will be amended in respect of, and shall cover, the increased Maximum Loan Amount and the Increase Tranche;
(l)    the Facility Agent shall have received such documentation and information as any Finance Party shall reasonably request to comply with “know your customer” or similar identification procedures under all laws and regulations applicable to the Finance Parties; and
(m)    the Facility Agent shall have received a certified true copy of the Addendum, evidencing an increase of the Contract Price to EUR 526,800,000 (or such other amount as may be approved by the Lenders).
3.2    The Facility Agent shall notify the Lenders and the Guarantor of the Amendment Effective Date by way of a confirmation in the form set out in Schedule 2 and such confirmation shall be conclusive and binding.
4    Representations and Warranties
(a)    Each of the Guarantor and the Original Borrower represents and warrants that each of the representations and warranties in:
(i)    Article VI of the Existing Credit Agreement; and
(ii)    clause 4(b) of Amendment Agreement Number One,
are deemed to be made by the Guarantor and the Original Borrower on the date of this Amendment and by the Guarantor on the Amendment Effective Date, in each case as if reference to the Loan Documents in each such representation and warranty was a reference to this Amendment and the Security Enhancement Guarantor Confirmation Agreement.
    5

5    Nomination of the Guarantor as Borrower
5.1    It is acknowledged and agreed that pursuant to Section 2.6 (Nomination of Royal Caribbean Cruises Ltd. as Borrower) of the Existing Credit Agreement, the Original Borrower and the Guarantor are entitled, on the basis set out therein, to nominate the Guarantor as the borrower for the purposes of the Existing Credit Agreement and the other Loan Documents. The Parties hereby agree that the Original Borrower and the Guarantor can make such election notwithstanding the absence of the written notification required pursuant to Section 2.6(a) (Nomination of Royal Caribbean Cruises Ltd. as Borrower) of the Existing Credit Agreement.
5.2    The Original Borrower and the Guarantor hereby nominate the Guarantor as the borrower for the purposes of the Amended Credit Agreement and the other Loan Documents, and accordingly, with effect from the date of this Amendment:
(a)    all references to “the Borrower” throughout the Amended Credit Agreement and the other Loan Documents shall be deemed to be references to Royal Caribbean Cruises Ltd. and all references to “the Guarantor” shall be deleted;
(b)    the Guarantor (as Borrower) shall assume, and hereby does assume, all of the rights and obligations of the Original Borrower under the Amended Credit Agreement and the other Loan Documents;
(c)    the Guarantor shall be released from its obligations set out in Article XII of the Amended Credit Agreement and the said Article XII of the Amended Credit Agreement shall cease to apply;
(d)    the Original Borrower will cease to be a party to, or to have any rights or obligations under, the Existing Credit Agreement and the other Loan Documents (and the Lenders hereby release the Original Borrower from its obligations under the Existing Credit Agreement and the other Loan Documents); and
(e)    Section 11.19 (Communications with the Borrower) of the Amended Credit Agreement shall be deleted,
in each case as reflected in the form of Amended Credit Agreement attached to this Amendment.
6    Accession of New Lenders
6.1    For good and valuable consideration (the receipt and adequacy of which is hereby), it is hereby agreed that, with effect from the Amendment Effective Date:
(a)    each New Lender is hereby made a party to the Amended Credit Agreement and a Lender for the purposes of the Amended Credit Agreement as if it were an original signatory to the Existing Credit Agreement;
(b)    each reference to the Lenders in the Amended Credit Agreement shall be deemed to include each New Lender, and accordingly the Amended Credit Agreement shall henceforth be construed in all respects as if references to the Lenders included the New Lenders; and
(c)    each New Lender and each of the other Finance Parties shall (and does) assume obligations towards one another and acquires rights against one another as that New Lender and those Finance Parties would have assumed and/or acquired had that New Lender been an original Lender in respect of the relevant portion of the Increase Commitment and as if the Increase Tranche had always comprised part of the Loan.
6.2    Each New Lender, with effect from the Amendment Effective Date:
    6

(a)    agrees to assume and will assume all of the obligations under the Amended Credit Agreement corresponding to the Increase Commitment set out next to its name in Exhibit B; and
(b)    appoints the Facility Agent and Hermes Agent in their capacities as such on the basis set out in Section 10.1 of the Amended Credit Agreement.
6.3    The existing Commitments of all Existing Lenders and their obligations in respect of the same under the Amended Credit Agreement shall continue in full force and effect.
6.4    The administration details of, and the address for notices and other communications to, each New Lender for the purposes of the Amended Credit Agreement and the other Loan Documents are set out in Schedule 1.
7    Incorporation of Terms
The provisions of Section 11.2 (Notices), Section 11.6 (Severability) and Subsections 11.14.2 (Jurisdiction), 11.14.3 (Alternative Jurisdiction) and 11.14.4 (Service of Process) of the Existing Credit Agreement shall be incorporated into this Amendment as if set out in full in this Amendment and as if references in those sections to “this Agreement” were references to this Amendment and references to each Party are references to each Party to this Amendment.
8    Fees, Costs and Expenses
8.1    The Guarantor shall pay to the Facility Agent (for its own account and for the account of the Lenders (as applicable)) the fees in the amounts and at the times agreed in the Fee Letters.
8.2    The Guarantor shall also pay to the Facility Agent (for the account of KfW) a non-refundable refinancing fee in an amount of (a) €1,000 per Option A Refinancing Agreement entered into with a Lender whose Commitments are equal to or less than €20,000,000 and (b) €2,000 per Option A Refinancing Agreement entered into with a Lender whose Commitments are greater than €20,000,000.
8.3    The payment of the above fees shall be made free and clear of any deduction, restriction or withholding and in immediately available freely transferable cleared funds to such account(s) as the Facility Agent shall notify the Guarantor of in advance or, where applicable, in the relevant Fee Letter.
8.4    The Guarantor agrees to pay on demand all reasonable out-of-pocket costs and expenses of:
(a)    the Facility Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the documents to be delivered hereunder or thereunder; and
(b)    KfW, the Facility Agent and any Lender in connection with the preparation, execution, delivery and administration, modification and amendment of any Option A Refinancing Agreement and any security or other documents executed or to be executed and delivered (including any legal opinions required to be provided by legal counsel to KfW) as a consequence of the parties entering into this Amendment and any other documents to be delivered under this Amendment,
(including the reasonable and documented fees and expenses of counsel for the Facility Agent and KfW with respect hereto and thereto as agreed with the Facility Agent and KfW) in accordance with the terms of Section 11.3 (Payment of Costs and Expenses) of the Existing Credit Agreement and as if references in that section to the Facility Agent are references to the Facility Agent and KfW.
    7

9    Counterparts
This Amendment may be executed in any number of counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original but all counterparts shall together constitute one and the same instrument. The Parties acknowledge and agree that they may execute this Amendment and any variation or amendment to the same, by electronic instrument. The Parties agree that the electronic signatures appearing on the document shall have the same effect as handwritten signatures and the use of an electronic signature on this Amendment shall have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating this Amendment, and evidencing the Parties’ intention to be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests including contract management.
10    Governing Law
This Amendment, and all non-contractual obligations arising in connection with it, shall be governed by and construed in accordance with English law.
The Parties have executed this Amendment the day and year first before written.
    8

Schedule 1
The Lenders

Existing Lenders
KfW IPEX-Bank GmbH
MUFG Bank, Ltd.
Société Générale
Helaba Landesbank Hessen-Thüringen Girozentrale
DZ BANK AG, New York Branch
Standard Chartered Bank
Bayerische Landesbank, New York Branch
Commerzbank AG, New York Branch

New Lenders
Name Address for notices
AKA AUSFUHRKREDIT-GESELLSCHAFT MBH Große Gallusstr. 1-7, 60311 Frankfurt /M, Germany
Oldenburgische Landesbank Aktiengesellschaft Stau 15/17, 26122 Oldenburg, Germany

    9

Schedule 2
Form of Amendment Effective Date confirmation – Hull S-719
[OMITTED]

    10

Schedule 3
Amended and Restated Credit Agreement


    1

_________________________________________
AMENDED AND RESTATED
HULL NO. S-719 CREDIT AGREEMENT
_________________________________________
Dated September 19, 2019
as amended on May 20, 2020
as further amended on July 23, 2020

as further amended and restated on December 21, 2020
and as further amended and restated on March 26, 2021
and as further amended and restated on September 27, 2021

BETWEEN,
Royal Caribbean Cruises Ltd.
as the Borrower,
the Lenders from time to time party hereto,
KfW IPEX-Bank GmbH
as Hermes Agent and Facility Agent
and
KfW IPEX-Bank GmbH
as Initial Mandated Lead Arranger and Sole Bookrunner

Hermes Backed Term Facility Agreement (Hull S-719)
Up to the US Dollar Equivalent of EUR434,201,000


TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms    2
SECTION 1.2. Use of Defined Terms; Other Definitional Provisions    26
SECTION 1.3. Cross-References    27
SECTION 1.4. Application of this Agreement to KfW IPEX as an Option A Lender    27
SECTION 1.5. Accounting and Financial Determinations    27
SECTION 1.6. Contractual Recognition of Bail-In    27
ARTICLE II COMMITMENTS AND BORROWING PROCEDURES
SECTION 2.1. Commitment    28
SECTION 2.2. Commitment of the Lenders    28
SECTION 2.3. Voluntary Reduction of Commitments    29
SECTION 2.4. Borrowing Procedure    30
SECTION 2.5. Funding    31
SECTION 2.6. Nomination of Royal Caribbean Cruises Ltd. as Borrower    32
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments    32
SECTION 3.2. Prepayment    33
SECTION 3.3. Right of cancellation in relation to a Defaulting Lender    35
SECTION 3.4. Interest Provisions    35
SECTION 3.4.1. Rates    35
SECTION 3.4.2. Election of Floating Rate    36
SECTION 3.4.3. Conversion to Floating Rate    37


SECTION 3.4.4. Post-Maturity Rates    38
SECTION 3.4.5. Payment Dates    38
SECTION 3.4.6. Interest Rate Determination; Replacement Reference Banks    38
SECTION 3.5. Commitment Fee    39
SECTION 3.5.1. Payment of Commitment Fee    40
SECTION 3.6. CIRR Guarantee Charge    40
SECTION 3.6.1. Generally    40
SECTION 3.6.2. Payment    40
SECTION 3.7. Other Fees    41
SECTION 3.8. Temporary Repayment    41
SECTION 3.9. Limit on Interest Make-Up    41
SECTION 3.10. Cancellation of CIRR Agreements    41
ARTICLE IV CERTAIN LIBO RATE, EURO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate or EURO Rate Lending Unlawful    42
SECTION 4.2. Deposits Unavailable    42
SECTION 4.3. Increased Loan Costs, etc.    43
SECTION 4.4. Funding Losses    45
SECTION 4.4.1. Indemnity    45
SECTION 4.5. Increased Capital Costs    47
SECTION 4.6. Taxes    48
SECTION 4.7. Reserve Costs    50
SECTION 4.8. Payments, Computations, etc.    51
SECTION 4.9. Replacement Lenders, etc.    52
SECTION 4.10. Sharing of Payments    53
SECTION 4.10.1. Payments to Lenders    53


SECTION 4.10.2. Redistribution of payments    53
SECTION 4.10.3. Recovering Lender's rights    53
SECTION 4.10.4. Reversal of redistribution    54
SECTION 4.10.5. Exceptions    54
SECTION 4.11. Set-off    54
SECTION 4.12. Use of Proceeds    55
SECTION 4.13. FATCA Deduction    55
SECTION 4.14. FATCA Information    55
SECTION 4.15. Resignation of the Facility Agent    57
ARTICLE V CONDITIONS TO BORROWING
SECTION 5.1. Advance of the Loan    58
SECTION 5.1.1. Resolutions, etc.    58
SECTION 5.1.2. Opinions of Counsel    58
SECTION 5.1.3. Hermes Insurance Policy    59
SECTION 5.1.4. Closing Fees, Expenses, etc.    59
SECTION 5.1.5. Compliance with Warranties, No Default, etc    59
SECTION 5.1.6. Loan Request    60
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations    60
SECTION 5.1.8. Pledge Agreement    60
ARTICLE VI REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Organisation, etc.    60
SECTION 6.2. Due Authorisation, Non-Contravention, etc.    61
SECTION 6.3. Government Approval, Regulation, etc.    61
SECTION 6.4. Compliance with Laws    61
SECTION 6.5. Validity, etc.    62


SECTION 6.6. No Default, Event of Default or Prepayment Event    62
SECTION 6.7. Litigation    62
SECTION 6.8. The Purchased Vessel    62
SECTION 6.9. Obligations rank pari passu    63
SECTION 6.10. Withholding, etc.    63
SECTION 6.11. No Filing, etc. Required    63
SECTION 6.12. No Immunity    63
SECTION 6.13. Investment Company Act    63
SECTION 6.14. Regulation U    63
SECTION 6.15. Accuracy of Information    64
ARTICLE VII COVENANTS
SECTION 7.1. Affirmative Covenants    64
SECTION 7.1.1. Financial Information, Reports, Notices, etc.    64
SECTION 7.1.2. Approvals and Other Consents    66
SECTION 7.1.3. Compliance with Laws, etc.    66
SECTION 7.1.4. The Purchased Vessel    67
SECTION 7.1.5. Insurance    68
SECTION 7.1.6. Books and Records    68
SECTION 7.1.7. Hermes Insurance Policy/Federal Republic of Germany Requirement    68
SECTION 7.1.8. Notice of written amendments to Construction Contract    69
SECTION 7.2. Negative Covenants    69
SECTION 7.2.1. Business Activities    69
SECTION 7.2.2. Indebtedness    69
SECTION 7.2.3. Liens    70
SECTION 7.2.4. Financial Condition    73


SECTION 7.2.5. Consolidation, Merger, etc.    73
SECTION 7.2.6. Asset Dispositions, etc.    75
SECTION 7.2.7. Construction Contract    75
SECTION 7.2.8. Additional Undertakings    75
SECTION 7.3. Limitation of in respect of Certain Representations, Warranties and Covenants    82
SECTION 7.4. Guarantor's Procurement Undertaking    82
ARTICLE VIII EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default    82
SECTION 8.1.1. Non-Payment of Obligations    82
SECTION 8.1.2. Breach of Warranty    83
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations    83
SECTION 8.1.4. Default on Other Indebtedness    83
SECTION 8.1.5. Bankruptcy, Insolvency, etc.    84
SECTION 8.2. Action if Bankruptcy    85
SECTION 8.3. Action if Other Event of Default    85
ARTICLE IX PREPAYMENT EVENTS
SECTION 9.1. Listing of Prepayment Events    85
SECTION 9.1.1. Change of Control    85
SECTION 9.1.2. Unenforceability    85
SECTION 9.1.3. Approvals    85
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations    86
SECTION 9.1.5. Judgments    86
SECTION 9.1.6. Condemnation, etc.    86
SECTION 9.1.7. Arrest    86
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel    86


SECTION 9.1.9. Delayed Delivery of the Purchased Vessel    86
SECTION 9.1.10. Termination of the Construction Contract    87
SECTION 9.1.11. Termination, etc. of the Hermes Insurance Policy    87
SECTION 9.1.12. Illegality    87
SECTION 9.1.13. Principles    87
SECTION 9.2. Mandatory Prepayment    88
ARTICLE X THE FACILITY AGENT AND THE HERMES AGENT
SECTION 10.1. Actions    88
SECTION 10.2. Indemnity    88
SECTION 10.3. Funding Reliance, etc    89
SECTION 10.4. Exculpation    89
SECTION 10.5. Successor    90
SECTION 10.6. Loans by the Facility Agent    91
SECTION 10.7. Credit Decisions    91
SECTION 10.8. Copies, etc.    91
SECTION 10.9. The Agents' Rights    91
SECTION 10.10. The Facility Agent's Duties    92
SECTION 10.11. Employment of Agents    92
SECTION 10.12. Distribution of Payments    92
SECTION 10.13. Reimbursement    93
SECTION 10.14. Instructions    93
SECTION 10.15. Payments    93
SECTION 10.16. "Know your customer" Checks    93
SECTION 10.17. No Fiduciary Relationship    94


ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc.    94
SECTION 11.2. Notices    95
SECTION 11.3. Payment of Costs and Expenses    96
SECTION 11.4. Indemnification    97
SECTION 11.5. Survival    98
SECTION 11.6. Severability; Independence of Obligations    98
SECTION 11.7. Headings    99
SECTION 11.8. Execution in Counterparts.    99
SECTION 11.9. Third Party Rights    99
SECTION 11.10. Successors and Assigns    99
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan    99
SECTION 11.11.1. Assignments    99
SECTION 11.11.2. Participations    102
SECTION 11.11.3. Register.    103
SECTION 11.12. Other Transactions    103
SECTION 11.13. Hermes Insurance Policy    103
SECTION 11.13.1. Terms of Hermes Insurance Policy    103
SECTION 11.13.2. Obligations of the Borrower.    104
SECTION 11.13.3. Obligations of the Hermes Agent and the Lenders    105
SECTION 11.14. Law and Jurisdiction    106
SECTION 11.14.1. Governing Law    106
SECTION 11.14.2. Jurisdiction    106
SECTION 11.14.3. Alternative Jurisdiction    106
SECTION 11.14.4. Service of Process    106


SECTION 11.15. Confidentiality    106
SECTION 11.16. CIRR requirements    107
SECTION 11.17. Mitigation    108
SECTION 11.18. Modification and/or discontinuation of benchmarks    109

EXHIBITS
EXHIBIT A     Form of Loan Request
EXHIBIT B-1    [INTENTIONALLY OMITTED]
EXHIBIT B-2    Form of Opinion of Liberian Counsel to Borrower
EXHIBIT B-3    Form of Opinion of English Counsel to Facility Agent and Lenders
EXHIBIT B-4     Form of Opinion of German Counsel to Facility Agent and Lenders
EXHIBIT B-5     Form of Opinion of US Tax Counsel to Lenders
EXHIBIT C     Form of Lender Assignment Agreement
EXHIBIT D     Form of Option A Refinancing Agreement
EXHIBIT E     Form of Pledge Agreement
EXHIBIT F     Form of Currency Election Notice
EXHIBIT G     Principles
EXHIBIT H     Form of Information Package
EXHIBIT I     Form of First Priority Guarantee
EXHIBIT J     Form of Second Priority Guarantee
EXHIBIT K     Form of Third Priority Guarantee
EXHIBIT L     Form of Senior Parties Subordination Agreement
EXHIBIT M     Form of Other Senior Parties Subordination Agreement

EXHIBIT N    Framework
EXHIBIT O    Debt Deferral Extension Regular Monitoring Requirements


EXHIBIT P     Replacement covenants with effect from the Security Enhancement Guarantee Release Date
EXHIBIT Q    Table of Commitments



CREDIT AGREEMENT

HULL NO. S-719 CREDIT AGREEMENT, dated as of September 19, 2019 (the "Effective Date") as amended on May 20, 2020, as further amended on July 23, 2020, as further amended and restated on December 21, 2020, as further amended and restated on March 26, 2021 and as further amended and restated on September 27, 2021 originally among Silversea Cruise Holding Ltd., a Bahamian company (the "Original Borrower"), Royal Caribbean Cruises Ltd., a Liberian corporation as original guarantor and, on and following the date of Amendment Number Three, the nominee borrower (“the Borrower”), KfW IPEX-Bank GmbH, in its capacity as agent for the Lenders referred to below in respect of CIRR and Hermes-related matters (in such capacity, the "Hermes Agent"), in its capacity as facility agent (in such capacity, the "Facility Agent"), in its capacity as sole bookrunner (in such capacity, the "Bookrunner") and in its capacity as a lender (in such capacity, together with each other Person that shall become a "Lender" in accordance with Section 11.11.1 hereof, each, individually, a "Lender" and, collectively, the "Lenders").
W I T N E S S E T H
WHEREAS:
(A)    The Original Borrower, the Borrower and Meyer Werft GmbH & Co. KG (the "Builder") have on 16 April 2019, entered into a Contract for the Construction and Sale of Hull No. S-719 (as amended from time to time, the "Construction Contract") pursuant to which the Builder has agreed to design, construct, equip, complete, sell and deliver the passenger cruise vessel bearing Builder's hull number S-719 (the "Purchased Vessel");
(B)    The Lenders have agreed to make available to the Borrower, upon the terms and conditions contained herein, a US dollar loan facility calculated on the amount (the "Maximum Loan Amount") (and being comprised of the Original Loan Amount and the Increase Loan Amount) equal to (x) eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel, as adjusted from time to time in accordance with the Construction Contract to reflect, among other adjustments, change orders, but which Contract Price shall not exceed for this purpose EUR 526,800,000 (the "Contract Price Proceeds"), plus (y) 100% of the Hermes Fee (as defined below) (the "Hermes Fee Proceeds") and being made available in the US Dollar Equivalent of that Maximum Loan Amount;
(C)    The Lenders have also agreed, upon the terms and conditions contained herein, that the loan facility up to the Maximum Loan Amount may be made available in EUR to the Borrower instead of Dollars if an election is made by the Borrower for the Loan to be denominated in EUR pursuant to Section 2.4(e);
(D)    The Contract Price Proceeds will be provided to the Borrower either two (2) Business Days prior to the anticipated Delivery Date (if the Loan is denominated in Dollars) or one (1) Business Day prior to the anticipated Delivery Date (if the Loan is denominated in EUR) for the purpose of paying a portion of the Contract Price in
Page 1
connection with the Borrower's purchase of the Purchased Vessel. The Hermes Fee Proceeds will be provided on the Disbursement Date and paid as set forth in Section 2.4(c) and (d);
(E)    The Parties hereto have previously amended this Agreement pursuant to that certain financial covenant waiver extension consent letter, dated as of July 23, 2020 (the "Waiver Letter");
(F)    The Parties hereto have previously amended and restated this Agreement pursuant to Amendment No. 1, dated as of December 21, 2020 (the "Amendment Number One") pursuant to which the Original Borrower and the Borrower agreed to procure the execution of the Security Enhancement Guarantees and to make certain amendments to this Agreement to reflect the existence of such Security Enhancement Guarantees.
(G)    Pursuant to Amendment No. 2 dated as of March 26, 2021 (the "Amendment Number Two"), the Parties agreed to further amendments to this Agreement in accordance with the Framework.
(H)    Pursuant to Amendment No. 3 dated as of                 , 2021 (the "Amendment Number Three"), and upon satisfaction of the conditions set forth therein, this Agreement is being amended and restated in the form of this Agreement and (1) the Maximum Loan Amount is being increased to include the Increase Loan Amount to be made available by the Increase Lenders and (2) the Original Borrower has, in accordance with Section 2.6 and clause 5 of Amendment Number Three, nominated the Borrower as borrower under this Agreement and the other Loan Documents and accordingly this Agreement has been amended to reflect such nomination.
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 capitalised, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):
"Accumulated Other Comprehensive Income (Loss)" means at any date the Borrower’s accumulated other comprehensive income (loss) on such date, determined in accordance with GAAP.
“Additional Hermes Fee” means the additional premium payable to Hermes under, and in respect of, the amendment to the Hermes Insurance Policy made in connection with Amendment Number Three and the making available of the Increase Tranche.
Page 2
"Additional Guarantee" means a guarantee of the Obligations provided by a New Subsidiary Guarantor in a form and substance substantially the same as the other Security Enhancement Guarantees (reflecting any necessary logical and factual changes), with such changes, or otherwise in form and substance, reasonably satisfactory to each of the Agents.
"Additional Subordination Agreement" means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee, as applicable, in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in form and substance, reasonably satisfactory to each of the Agents and the beneficiaries of any Indebtedness incurred by the relevant Security Enhancement Guarantor, as applicable.
“Adjustable Amount” means, as of any time of determination, $500,000,000; provided if the aggregate amount of New Capital is equal to or greater than $500,000,000, then the Adjustable Amount shall be $350,000,000.
“Adjusted Cash Balance” means, as of any date (the “Measurement Date”), the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP plus (a) any amounts available to be drawn by the Borrower and/or any of its Subsidiaries under committed but undrawn term loan or revolving credit facility agreements (excluding any amounts available under agreements where the proceeds are only intended to be used to fund the purchase of new Vessels) and less (b) the sum of (i) any scheduled payments of principal or interest (but for the purposes of anticipating any interest liabilities, the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the Measurement Date) in respect of debt during the period commencing on the Measurement Date and ending on the date that is six months thereafter, (ii) any customer deposits held by the Borrower or its Subsidiaries for cruises that are scheduled to commence within three months of the Measurement Date and (iii) any planned Non-Financed Capex during the period commencing on the Measurement Date and ending on the date that is six months thereafter.
“Adjusted EBITDA after Interest” means, for any Last Reported Fiscal Quarter, the Borrower’s EBITDA for such period, excluding those items, if any, that the Borrower has excluded in determining “Adjusted Net Income” for such period as disclosed in the Borrower’s annual report on Form 10-K or quarterly report on Form 10-Q, as applicable, for such Last Reported Fiscal Quarter, as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
"Affiliate" of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be "controlled by" any other Person if such other Person possesses, directly or indirectly, power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
"Agent" means either the Hermes Agent or the Facility Agent and "Agents" means both of them.
Page 3
"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.
“Amendment Three Effective Date” has the meaning ascribed to the term “Amendment Effective Date” in Amendment Number Three.
“Amendment Two Effective Date” has the meaning ascribed to the term “Amendment Effective Date” in Amendment Number Two.
“Amendment Number One” is defined in the preamble.
“Amendment Number Three” is defined in the preamble.
“Amendment Number Two” is defined in the preamble.
“Annex VI” means Annex VI of the Protocol of 1997 (as subsequently amended from time to time) to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol), as modified by the Protocol of 1978 relating thereto.
"Anti-Corruption Laws" means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.
"Applicable Commitment Rate" means (x) from and including the Effective Date through and including 31 March 2020 (being the date falling 24 months before the anticipated Delivery Date as at the Effective Date), 0.15% per annum, (y) from and including 1 April 2020 through and including 31 March 2021 (being the date falling 12 months before the anticipated Delivery Date as at the Effective Date), 0.25% per annum, and (z) from and including 1 April 2021 through but excluding the Commitment Fee Termination Date, 0.30% per annum.
"Applicable Jurisdiction" means the jurisdiction or jurisdictions under which an Obligor is organised, 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.
"Assignee Lender" is defined in Section 11.11.1.
"Authorised Officer" means any of the officers of the Borrower authorised to act with respect to the Loan Documents and whose signatures and incumbency shall have been certified to the Facility Agent by the Secretary or an Assistant Secretary of the Borrower.
"Bank Indebtedness" means the Borrower's Indebtedness up to a maximum aggregate principal amount of $5,300,000,000 under the following agreements (as amended, restated, supplemented, extended, refinanced, replaced or otherwise modified from time to time): (a) the USD1,550,000,000 revolving credit facility maturing in 2022 with Nordea Bank AB (publ), New York Branch as agent, (b) the USD1,925,000,000 revolving credit facility maturing in 2024 with The Bank of Nova Scotia as agent, (c) the USD1,000,000,000 term loan maturing on 5 April
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2022 with Bank of America, N.A. as agent, (d) the USD300,000,000 term loan maturing on 7 June 2028 with Nordea Bank ABP, New York Branch as agent, (e) the USD55,827,065 term loan maturing on 5 December 2022 with Sumitomo Mitsui Banking Corporation as agent, (f) the €80,000,000 term loan maturing in November 2024 with Skandinaviska Enskilda Banken AB (publ) as agent, (g) the USD130,000,000 term loan maturing on 2 February 2023 with Industrial and Commercial Bank of China Limited, New York Branch as agent, (h) that certain guarantee dated 18 July 2016 with SMBC Leasing and Finance, Inc. as agent in connection with liabilities relating to the "Lease", the "Construction Agency Agreement", the "Participation Agreement" and any other "Operative Document" (as each term is defined in such guarantee) and (i) any other agreement (other than in connection with Credit Card Obligations) as to which the Second Priority Guarantors provide a first priority guarantee package.
"Bank of Nova Scotia Agreement" means the U.S. $1,925,000,000 amended and restated credit agreement dated as of December 4, 2017 among the Borrower, as borrower, the various financial institutions as are or shall become parties thereto, as lenders, and The Bank of Nova Scotia, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
"Benchmark Successor Rate" is defined in Section 11.18.
"Benchmark Successor Rate Conforming Changes" means, with respect to any proposed Benchmark Successor Rate, any conforming changes to the definition of Screen Rate, Interest Period, timing and frequency of determining rates, making payments of interest, yield protection provisions relating to the cost element of any Floating Rate Loan (including but not limited to any break costs relating to any early repayment or prepayment of any Floating Rate Loan), fallback (and market disruption) provisions for that Benchmark Successor Rate and other administrative matters as may be appropriate, in the discretion of the Facility Agent in consultation with the Borrower, to reflect the adoption of such Benchmark Successor Rate and to permit the administration thereof by the Facility Agent in a manner substantially consistent with market practice (or, if the Facility Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Benchmark Successor Rate exists, in such other manner of administration as the Facility Agent determines is reasonably necessary in connection with the administration of this Agreement).
"Borrower" is defined in the preamble.
"Builder" is defined in the preamble.
"Business Day" means any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorised or required to be closed in New York City, London or Frankfurt, and (in relation to any date for payment or purchase of EUR) any TARGET Day or if the applicable Business Day relates to an advance of all or part of the Loan, an Interest Period, prepayment or conversion, in each case with respect to the Loan bearing interest by reference to the LIBO Rate, a day on which dealings in deposits in Dollars are carried on in the London interbank market or, if an election is made for the Loan to be denominated in EUR pursuant to Section 2.4(e) by reference to the EURO Rate, a day on which dealings in deposits in EUR are carried on in the interbank market within the Participating Member States.
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"Buyer's Allowance" has the meaning assigned to "NYC Allowance" in Article II.1.1 of the Construction Contract and, when such expression is prefaced by the word "incurred", shall mean such amount of the Buyer's Allowance, not exceeding EUR 64,300,000, as shall at the relevant time have been paid, or become payable, to the Builder by the Borrower under the Construction Contract as part of the Contract Price.
"Capital Lease Obligations" means obligations of the Borrower or any Subsidiary of the Borrower under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalised leases.
"Capitalisation" means, at any date, the sum of (a) Net Debt on such date, plus (b) Stockholders' Equity on such date.
"Capitalised 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 capitalised leases, and, for purposes of this Agreement and each other Loan Document, the amount of such obligations shall be the capitalised amount thereof, determined in accordance with GAAP.
"Cash Equivalents" means all amounts other than cash that are included in the "cash and cash equivalents" shown on the Borrower's balance sheet prepared in accordance with GAAP.
"Change of Control" means, in relation to the Borrower, an event or series of events by which (A) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have "beneficial ownership" of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an "option right")), directly or indirectly, of 50% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (B) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
"Change in Law" means (a) the adoption after the date of this Agreement of any law, rule or regulation or (b) any change after the date of this Agreement in any law, rule or regulation or in the interpretation or application thereof by any governmental authority.
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"CIRR" means:    
(a)    where the Loan is denominated in Dollars:
(i)    the CIRR in respect of USD based on the OECD Arrangement for Officially Supported Export Credits and as set by KfW on behalf of the Federal Republic of Germany pursuant to section 3.4.1(c) and includes the CIRR administrative margin of 0.20% per annum and which shall, in aggregate, be equal or greater than the USD CIRR Floor; or
(ii)    where Section 3.4.1(c) applies and KfW has not set a CIRR for Dollars, the USD CIRR Cap; or
(iii)    where Section 3.4.1(b) applies, the KfW Fixed Rate for Dollars; or
(b)    where the Loan is denominated in EUR:
(i)    the CIRR in respect of EUR based on the OECD Arrangement for Officially Supported Export Credits and as set by KfW pursuant to section 3.4.1(c) and includes the CIRR administrative margin of 0.20% per annum and which shall, in aggregate, be equal to or greater than the EUR CIRR Floor; or
(ii)    where Section 3.4.1(c) applies and KfW has not set a CIRR for EUR, the EUR CIRR Cap; or
(iii)    where Section 3.4.1(b) applies, the KfW Fixed Rate for EUR.
"CIRR Agreement" means either an Option A Refinancing Agreement or an Option B Interest Make-Up Agreement
"CIRR Guarantee" means the interest make-up guarantee provided by the Federal Republic of Germany to a Lender pursuant to Section 1.1 of the Terms and Conditions.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.
"Commitment" means:
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(a)    in respect of a Lender as at the Amendment Three Effective Date, the amount set opposite that Lender’s name under the column titled “Total Commitment” in Exhibit Q and which, in the case of an Increase Lender, shall include that Lender’s Increase Commitment; and
(b)    in the case of any Lender that becomes a Lender after the Amendment Three Effective Date pursuant to an assignment pursuant to Section 11.11.1, the amount set forth as such Lender's Commitment (including any Increase Commitment (if applicable)) in the related Lender Assignment Agreement,
in each case as such amount may be reduced from time to time pursuant to Section 2.3 or reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.11.1.
"Commitment Fees" is defined in Section 3.5.
"Commitment Fee Termination Date" is defined in Section 3.5.
"Commitment Letter" means the letter dated 11 February 2019 (as amended from time to time) issued by the Facility Agent to the Original Borrower and the Borrower and which sets out the principal terms and conditions of this Agreement.
"Commitment Termination Date" means 31 December 2023.
"Construction Contract" is defined in the preamble.
"Construction Mortgage" means the first ranking shipbuilding mortgage (Hoechstbetragsschiffshypothek) in respect of the Purchased Vessel executed or to be executed by the Builder in favour of banks and financial institutions designated by the Builder to secure loans made or to be made to the Builder to finance the construction of the Purchased Vessel.
"Contract Price" is as defined in the Construction Contract and includes the Buyer's Allowance.
“Covenant Modification Date” means the later to occur of (a) the expiry of the Financial Covenant Waiver Period and (b) the date upon which the financial covenants set out in Section 7.2.4 have been modified in this Agreement in a form and substance satisfactory to Hermes, the Borrower and the Lenders.
"Covered Taxes" is defined in Section 4.6.
"Credit Card Obligations" means any obligations of the Borrower under credit card processing arrangements or other similar payment processing arrangements entered into in the ordinary course of business of the Borrower.
"DDTL Indebtedness" means the Borrower's Indebtedness (or, if such Indebtedness has not yet been incurred, the commitments by lenders to provide Indebtedness to the Borrower as of the effectiveness of the Amendment Number One) in connection with that certain Commitment
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Letter, dated as of August 12, 2020, between the Borrower and MORGAN STANLEY SENIOR FUNDING INC. (as amended, restated, extended, supplemented, refinanced, replaced or otherwise modified from time to time).
“Debt Deferral Extension Regular Monitoring Requirements" means the general test scheme/reporting package in the form set out in Exhibit O to this Agreement submitted or to be submitted (as the case may be) by the Borrower in accordance with Section 7.1.1(i).
"Debt Incurrence" means any incurrence of indebtedness for borrowed money by any Group Member, whether pursuant to a public offering or a Rule 144A or other private placement of debt securities (and including any secured debt securities (but excluding any unsecured debt securities) which are convertible into equity securities of the Borrower) or an incurrence of loans under any loan or credit facility, or any issuance of bonds, other than:
(a)    any indebtedness (but having regard, in respect of any secured and/or guaranteed indebtedness, to the restrictions set out in Section 7.2.10(b)) incurred by a Group Member between April 1, 2020 and December 31, 2022 (or such later date as may, with the prior consent of Hermes, be agreed between the Borrower and the Lenders) for the purpose of providing crisis and/or recovery-related funding;
(b)    indebtedness incurred by a Group Member pursuant to an intra-Group loan from another Group Member, provided that no Group Member shall be permitted to incur any such Indebtedness at any time where an Event of Default or a Prepayment Event has occurred and is continuing;
(c)    indebtedness incurred to refinance (and for this purpose having regard to the applicable provisions of Section 7.2.10) a maturity payment under any existing loan or credit facility (including any crisis and/or recovery-related indebtedness incurred by a Group Member between April 1, 2020 and December 31, 2022) or issued bonds of a Group Member, provided that:
(i)    in the case of any such refinancing, the amount of such indebtedness being used in connection with that refinancing does not increase the aggregate principal amount of such indebtedness or the commitments outstanding at the time of that refinancing and is otherwise incurred on a basis permitted pursuant to this Agreement (including, without limitation, in relation to the provision of any Liens or guarantees that may be provided to support the relevant refinancing arrangement); and
(ii)    in the case of the refinancing of crisis and/or recovery-related indebtedness of the type referred to above, that refinancing shall either (A) reduce the interest burden of the Borrower (and for such purposes the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the time of the new debt incurrence) or (B) replace the existing secured and/or guaranteed indebtedness with unsecured and unguaranteed debt;
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(d)    indebtedness provided by banks or other financial institutions under the Borrower’s senior unsecured revolving credit facilities in an aggregate amount not greater than the commitments thereunder as in effect on 19 February 2021 plus the amount of any existing uncommitted incremental facilities (for example, any unused accordion) on such facilities;
(e)    indebtedness provided by banks or other financial institutions which, as at 19 February 2021, is committed but yet to be incurred in respect of the DDTL Indebtedness (but, in respect of that DDTL Indebtedness, up to a maximum amount of $700,000,000 or, where the Borrower has exercised the pre-existing accordion option in respect of that DDTL Indebtedness, a maximum amount of $1,000,000,000 (but on the basis that, following the exercise of that accordion option, an amount equal to the additional $300,000,000 or, if the amount of indebtedness incurred under such accordion option is less, the relevant amount made available under the DDTL Indebtedness shall be included in the overall limit on secured and/or guaranteed indebtedness set out in Section 7.2.10(b)));
(f)    any of the following types of indebtedness in each case incurred in the ordinary course of business of any Group Member:
(i)    the issuances of commercial paper;
(ii)    Capitalized Lease Liabilities;
(iii)    purchase money indebtedness;
(iv)    indebtedness under overdraft facilities; and
(v)    financial obligations in connection with repurchase agreements and/or securities lending arrangements; and
(g)    vessel financings (including the financing of pre-delivery contract installments, change orders, owner furnished equipment costs or other such similar arrangements) in respect of vessels for which shipbuilding contracts have been executed on or prior to 1 April 2020 (provided, however, that a refinancing of a vessel financing shall not be included in this carve-out (g).
There shall be a presumption that any indebtedness incurred by the Borrower between April 1, 2020 and December 31, 2022 shall be for the purpose of providing crisis and/or recovery-related funding unless the intended use of proceeds from such indebtedness are specifically identified to be used for an alternative purpose. In the event there is any question as to whether funding qualifies as "crisis and/or recovery-related", Hermes, the Facility Agent and the Borrower shall negotiate a resolution in good faith for a maximum period of fifteen (15) Business Days.
"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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"Defaulting Lender" means any Lender:
(a)    which has failed to make its participation in the Loan available (or has notified the Facility Agent or the Borrower (which has notified the Facility Agent) that it will not make its participation in the Loan available) by the Disbursement Date;
(b)    which has otherwise rescinded or repudiated a Loan Document; or
(c)    with respect to which a Lender Insolvency Event has occurred and is continuing,
unless, in the case of paragraph (a) above:
(i)    its failure to pay is caused by:
(A)    administrative or technical error; or
(B)    a Disruption Event; and
payment is made within three Business Days of its due date; or
(ii)    the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
"Delivery Date" means the date on which the Purchased Vessel is delivered by the Builder to, and accepted by, the Borrower under the Construction Contract.
"Disbursement Date" means the date on which the Loan is advanced; provided that if the Loan is re-borrowed pursuant to Section 3.8, then, for all purposes of this Agreement concerning such re-borrowed Loan, the Disbursement Date shall be the date of such re-borrowing. When such expression is prefaced by the word "expected", it shall denote the date on which the Borrower then reasonably expects the Loan to be disbursed based upon the then-scheduled Delivery Date of the Purchased Vessel.
"Dispose" means to sell, transfer, license, lease, distribute or otherwise transfer, and "Disposition" shall have a correlative meaning.
"Disruption Event" means either or both of:
(a)    a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with this loan facility (or otherwise in order for the transactions contemplated by the Loan Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties to this Agreement; or
(b)    the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a party to this Agreement preventing that, or any other party to this Agreement:
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(i)    from performing its payment obligations under the Loan Documents; or
(ii)    from communicating with other parties to this Agreement in accordance with the terms of the Loan Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party to this Agreement whose operations are disrupted.
"Dollar", "USD" and the sign "$" mean lawful money of the United States.
"Dollar Pledged Account" means the Dollar account referred to in the Pledge Agreement.
“Early Warning Monitoring Period” means the period beginning on the Amendment Two Effective Date and ending on the last day of two consecutive Fiscal Quarters where the Borrower’s Adjusted EBITDA after Interest for each such Fiscal Quarter is a positive number, as evidenced pursuant to the certificate to be submitted by the Borrower pursuant to Section 7.1.1.(l) (and such day shall be notified to the Borrower by the Facility Agent).
“EBITDA” means, for any Last Reported Fiscal Quarter, the Borrower’s consolidated operating income for such period plus any depreciation and amortization expenses that were deducted in calculating consolidated operating income for such period and minus consolidated interest expense of the Borrower for such period (net of any capitalized interest and interest income), in each case as determined in accordance with GAAP.
"ECA Financed Vessel" means any Vessel subject to any ECA Financing.
"ECA Financing" means any financing arrangement pursuant to which one or more ECA Guarantor provides guarantees or other credit support (including but not limited to a sale and leaseback transaction or bareboat charter or lease or an arrangement whereby a Vessel under construction is pledged as collateral to secure the indebtedness of a shipbuilder, and, for the avoidance of doubt, committed but undrawn export credit agency facilities), entered into by the Borrower or a Subsidiary for the purpose of financing or refinancing all or any part of the purchase price, cost of design or construction of a Vessel or Vessels or the acquisition of Equity Interests of entities owning, or to own, Vessels.
“ECA Guarantor” means BpiFrance Assurance Export, Finnvera plc or Euler Hermes Aktiengesellschaft (or, in each case, any successor thereof).
"Effective Date" is defined in the preamble.
"Election Date" means the date falling 65 days prior to the actual Disbursement Date.
"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.
"Equity Interests" means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership
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or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities) but excluding any debt securities convertible into such Equity Interests.
"EUR" and the sign "€" mean the currency of participating member states of the European Monetary Union pursuant to Council Regulation (EC) 974/98 of 3 May 1998, as amended from time to time.
"EUR CIRR Cap" means 2.70% per annum.
"EUR CIRR Floor" means the CIRR in respect of EUR at the time of signing of the Construction Contract which is equal to 0.82% per annum.
"EUR Fixed Rate Margin" means:
(a)    in respect of the Loan (but excluding the Increase Tranche), 0.40% per annum; and
(b)    in respect of the Increase Tranche, 0.60% per annum.
"EUR Floating Rate Margin" means:
(a)    in respect of the Loan (but excluding the Increase Tranche), 0.60% per annum; and
(b)    in respect of the Increase Tranche, 0.80% per annum.
"EUR Pledged Account" means the EUR account referred to in the Pledge Agreement.
"EURO Rate" means the Screen Rate offered for EUR at or about 10:00 a.m. (London time) two (2) TARGET Days before the commencement of the relevant Interest Period; provided that:

(a)    subject to Section 3.4.6, if no such offered quotation appears on Thomson Reuters EURIBOR01 Page (or any successor page) at the relevant time the EURO Rate shall be the rate per annum certified by the Facility Agent to be the average of the rates quoted by the Reference Banks as the rate at which each of the Reference Banks was (or would have been) offered deposits of EUR by prime banks in the interbank market within the Participating Member States in an amount approximately equal to the amount of the Loan and for a period of six months;
(b)    for the purposes of determining the post-maturity rate of interest under Section 3.4.4, the EURO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Facility Agent may determine after consultation with the Lenders, which period shall be no longer than one month unless the Borrower otherwise agrees; and
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(c)    if the EURO Rate determined in accordance with the foregoing provisions of this definition is less than zero, such rate shall be deemed to be zero for the purpose of this Agreement.
"Event of Default" is defined in Section 8.1.
"Existing Principal Subsidiaries" means each Subsidiary of the Borrower that is a Principal Subsidiary on the Effective Date.
"Facility Agent" is defined in the preamble and includes each other Person as shall have subsequently been appointed as the successor Facility Agent, and as shall have accepted such appointment, pursuant to Section 10.5.
"FATCA" means Sections 1471 through 1474 of the Code, as in effect at the date hereof (or any amended or successor version that is substantively comparable), any current or future regulations promulgated thereunder or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any published intergovernmental agreement entered into in connection with the implementation of such sections of the Code, any published intergovernmental agreement entered into in connection with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such published intergovernmental agreements.
"FATCA Deduction" means a deduction or withholding from a payment under a Loan Document required by FATCA.
"FATCA Exempt Party" means a party to this Agreement that is entitled to receive payments free from any FATCA Deduction.
"Fee Letter" means any letter entered into by reference to this Agreement between any or all of (a) the Facility Agent, the Initial Mandated Lead Arranger and/or, the Lenders and (b) the Original Borrower or the Borrower, setting out the amount of certain fees referred to in, or payable in connection with, this Agreement.
"Final Maturity" means the date occurring 144 months (being 12 years) after the Disbursement Date.
"Financial Covenant Waiver Period" means the period from and including April 1, 2020 to and including December 31, 2022.
"First Fee" is defined in Section 11.13.
"First Priority Assets" means the Vessels known on the date the Amendment Number One becomes effective as or that sailed under the name (i) Celebrity Constellation, (ii) Celebrity Equinox, (iii) Celebrity Millennium, (iv) Celebrity Silhouette, (v) Celebrity Summit, (vi) Celebrity Eclipse, (vii) Celebrity Infinity, (viii) Celebrity Reflection and (ix) Celebrity Solstice (it being understood that such Vessels shall remain "First Priority Assets" regardless of any change in name or ownership after such date).
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"First Priority Guarantee" means the first priority guarantee granted by the First Priority Guarantor on or prior to the date of effectiveness of Amendment Number One (and any other first priority guarantee granted by a First Priority Holdco Subsidiary in connection with becoming a First Priority Guarantor) in favour of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit H.
"First Priority Guarantor" means Celebrity Cruise Lines Inc. (and any of its successors) and any other First Priority Holdco Subsidiary that has granted or, prior to that entity becoming a First Priority Holdco Subsidiary pursuant to a Disposal of a First Priority Asset in accordance with Section 7.2.8(a)(v)(A), will grant a First Priority Guarantee.
"First Priority Holdco Subsidiaries" means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any First Priority Assets.    
"First Priority Release Event" means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Amendment Number One (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of the Amendment Number One (being $3,320,000,000):
(a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
(b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower.
Notwithstanding the foregoing, a First Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a First Priority Release Event would have occurred but for the continuance of the payment default described above, then a First Priority Release Event will occur immediately upon that payment default being remedied.
"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:
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(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 Capitalised Lease Liabilities), in each case, of the Borrower and its Subsidiaries for such period.
"Fixed Rate" means:
(a)    where the Loan is denominated in Dollars, a rate per annum equal to the sum of the applicable CIRR plus the relevant USD Fixed Rate Margin;
(b)    where the Loan is denominated in EUR, a rate per annum equal to the sum of the applicable CIRR plus the relevant EUR Fixed Rate Margin; and
(c)    where the Borrower has made an election under Section 3.4.1(b), the KfW Fixed Rate.
"Fixed Rate Loan" means the Loan bearing interest at the Fixed Rate, or that portion of the Loan that continues to bear interest at the Fixed Rate after the termination of any CIRR Agreement pursuant to Section 3.4.3.
"Fixed Rate Margin" means the relevant USD Fixed Rate Margin or, as the case may be, the relevant EUR Fixed Rate Margin.
"Floating Rate" means:
(a)    where the Loan is denominated in Dollars, the percentage rate per annum equal to the sum of the LIBO Rate plus the relevant USD Floating Rate Margin; and
(b)    where the Loan is denominated in EUR, the percentage rate per annum equal to the sum of the EURO Rate plus the relevant EUR Floating Rate Margin.
"Floating Rate Indemnity Amount" is defined in Section 4.4.1(a).
"Floating Rate Loan" means all or any portion of the Loan bearing interest at the Floating Rate.
"Floating Rate Margin" means the relevant USD Floating Rate Margin or, as the case may be, the relevant EUR Floating Rate Margin.

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“Framework” means the document titled “Debt Deferral Extension Framework” in the form set out in Exhibit N to this Agreement, and which sets out certain key principles and parameters and being applicable to Hermes-covered loan agreements such as this Agreement.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System or any successor thereto.
"Funding Losses Event" is defined in Section 4.4.1.
"GAAP" is defined in Section 1.5.
"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 its or their business in such Applicable Jurisdiction, excluding, in any event, any taxes imposed on the Borrower or any Subsidiary of the Borrower.
“Guarantor” is defined in the preamble.
“Group” means the Borrower and its Subsidiaries from time to time.
“Group Member” means any entity that is a member of the Group.
“Group Member Guarantee” means any guarantee or other similar or analogous credit support arrangement granted by a Group Member (other than the Borrower) in support of the Indebtedness of another Group Member or any other Person.
"Hedging Instruments" means options, caps, floors, collars, swaps, forwards, futures and any other agreements, options or instruments substantially similar thereto or any series or combination thereof used to hedge one or more interest, foreign currency or commodity exposures.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document.
"Hermes" means Euler Hermes Aktiengesellschaft, Gasstraße 27, 22761 Hamburg, Germany acting in its capacity as representative of the Federal Republic of Germany in connection with the issuance of export credit guarantees.
"Hermes Agent" is defined in the preamble.
"Hermes EUR Equivalent" means, where the Loan is to be denominated in EUR and for the calculation and reimbursement of the Hermes Fee to the Borrower in EUR, the amount thereof paid in Dollars for the First Fee and the Second Fee converted to a corresponding EUR amount as determined by Hermes on the basis of the latest rate for the purchase of Dollars with
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EUR to be published by the German Federal Ministry of Finance prior to the time that Hermes issues its invoice for the Hermes Fee.
"Hermes Fee" means, together, the Original Hermes Fee and the Additional Hermes Fee.
"Hermes Insurance Policy" means the export credit guarantee (Finanzkreditgarantie) issued by the Federal Republic of Germany, represented by Hermes, in favour of the Lenders.
"Illegality Notice" is defined in Section 3.2(b).
“Increase Commitment” means, in relation to each Increase Lender, the amount of its Commitment in respect of the Increase Loan Amount (as more particularly set out in Exhibit Q), to the extent not cancelled, reduced or assigned by it under this Agreement.
“Increase Lenders” means each New Lender (as defined in Amendment Number Three) and each other Lender which has, in accordance with Amendment Number Three, agreed to provide an Increase Commitment, and which in each case has not ceased to be a Lender in accordance with the terms of this Agreement.
“Increase Loan Amount” means the increase in the amount of the Maximum Loan Amount in an amount of up to the US Dollar Equivalent of EUR82,621,000).
“Increase Tranche” means the advance made available or to be made available (as the case may be) by the Increase Lenders in an aggregate amount not to exceed the Increase Loan Amount or, as the case may be, the aggregate outstanding amount of such advance from time to time.
"Indebtedness" means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than (i) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 180 days of the date the respective goods are delivered or the respective services are rendered and (ii) any purchase price adjustment, earnout or deferred payment of a similar nature incurred in connection with an acquisition (but only to the extent that no payment has at the time accrued pursuant to such purchase price adjustment, earnout or deferred payment obligation); (c) Indebtedness of others secured by a Lien on the property of such Person, whether or not the respective Indebtedness so secured has been assumed by such Person; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (e) Capital Lease Obligations of such Person; (f) guarantees by such Person of Indebtedness of others, up to the amount of Indebtedness so guaranteed by such Person; (g) obligations of such Person in respect of surety bonds and similar obligations; and (h) liabilities arising under Hedging Instruments.
"Indemnified Liabilities" is defined in Section 11.4.
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"Indemnified Parties" is defined in Section 11.4.
"Information Package" means the general test scheme/information package in connection with the application for a debt holiday in the form of Exhibit G hereto submitted or to be submitted (as the case may be) by the Borrower in order to obtain the benefit of the measures provided for in the Principles for the purpose of this Agreement and certain of its obligations under this Agreement.
"Interest Period" means the period from and including the Disbursement Date up to and including the first Repayment Date, and subsequently each succeeding period from and including the last day of the prior Interest Period up to and including the next Repayment Date, except that:
(a)    any Interest Period which would otherwise end on a day which is not a Business Day shall end on the next Business Day to occur, except if such Business Day does not fall in the same calendar month, the Interest Period will end on the last Business Day in that calendar month, the interest amount due in respect of the Interest Period in question and in respect of the next following Interest Period being adjusted accordingly;
(b)    if any Interest Period is altered by the application of a) above, the subsequent Interest Period shall end on the day on which it would have ended if the preceding Interest Period had not been so altered; and
(c)    where Section 3.4.2(c) applies, the Interest Period shall, but still having regard to the above provisions, be determined in accordance with Section 3.4.2(c).
"Investment Grade" means, with respect to Moody's, a Senior Debt Rating of Baa3 or better and, with respect to S&P, a Senior Debt Rating of BBB- or better.
"KfW" means KfW of Palmengartenstraße 5-9, 60325 Frankfurt am Main, Germany, in its capacities as (a) the mandated CIRR provider on behalf of the government of the Federal Republic of Germany (represented by the Federal Ministry of Economic Affairs and Energy and the Federal Ministry of Finance) or (b) as refinancing bank with respect to the Option A Refinancing Agreements, in each case with KfW in turn being represented by KfW IPEX or (c) in relation to Section 11.11.1(i) in its capacity as an Affiliate of KfW IPEX.
"KfW Fixed Rate" is defined in Section 3.4.1(b).
"KfW IPEX" means KfW IPEX-Bank GmbH.
“Last Reported Fiscal Quarter(s)” means the most recently completed Fiscal Quarter(s) for which the Borrower has filed financial statements with the SEC as part of an annual report on Form 10-Q or a quarterly report on Form 10-Q.
"Latest Date" has the meaning given to such term in Section 7.2 of the Terms and Conditions.

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"Lender" and "Lenders" are defined in the preamble, and shall, from the Amendment Three Effective Date, include each New Lender.
"Lender Assignment Agreement" means any Lender Assignment Agreement substantially in the form of Exhibit C.
"Lender Insolvency Event" means, in relation to a Lender, the appointment of a liquidator, receiver, administrative receiver, examiner, administrator, compulsory manager or other similar officer in respect of that Lender or all or substantially all of that Lender's assets or any analogous procedure or step being taken in any jurisdiction with respect to that Lender.
"Lending Office" means, relative to any Lender, the office of such Lender designated as such below its signature hereto or designated in a Lender Assignment Agreement or such other office of a Lender as designated from time to time by notice from such Lender to the Borrower and the Facility Agent, whether or not outside the United States, which shall be making or maintaining the Loan of such Lender hereunder.
"LIBO Rate" means the Screen Rate for Dollars (having regard to Section 3.4.2(c)) at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period; provided that:
(a)    subject to Section 3.4.6, if no such rate appears on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any such replacement page) at the relevant time, the LIBO Rate shall be the rate per annum certified by the Facility Agent to be the average of the rates quoted by the Reference Banks as the rate at which each of the Reference Banks was (or would have been) offered deposits of Dollars by prime banks in the London interbank market in an amount approximately equal to the amount of the Loan and for a period of six months, as applicable;
(b)    for the purposes of determining the post-maturity rate of interest under Section 3.4.4, the LIBO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Facility Agent may determine after consultation with the Lenders, which period shall be no longer than one month unless the Borrower otherwise agrees; and
(c)    if the LIBO Rate determined in accordance with the foregoing provisions of this definition is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
"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" means the principal sum in Dollars, not exceeding the US Dollar Maximum Loan Amount or, as the case may be, in EUR, not exceeding the Maximum Loan Amount (and for this purpose including the amount of the Increase Tranche) if an election is made for the Loan to be
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denominated in EUR pursuant to Section 2.4(e), advanced by the Lenders to the Borrower upon the terms and conditions of this Agreement or (as the context may require) the amount thereof for the time being advanced and outstanding under this Agreement.
"Loan Documents" means this Agreement, the Waiver Letter, Amendment Number One, Amendment Number Two, Amendment Number Three, the Pledge Agreement, the Fee Letters, the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee, any Additional Guarantee, the Security Enhancement Guarantor Confirmation Agreement, the Subordination Agreements, any Additional Subordination Agreement and any New Subsidiary Guarantor Subordination Agreement and any other document jointly designated as a "Loan Document" by the Facility Agent, the Borrower or, prior to the date of Amendment Number Three, the Original Borrower.
"Loan Request" means the loan request and certificate duly executed by an Authorised Officer of the Borrower, substantially in the form of Exhibit A hereto.
"Margin" means the relevant Fixed Rate Margin and/or (as the context requires hereunder) the relevant Floating Rate Margin.
"Material Adverse Effect" means a material adverse effect on (a) the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of the Facility Agent or any Lender under the Loan Documents or (c) the ability of any Obligor to perform its payment Obligations under the Loan Documents to which it is a party.
"Material Subsidiary Guarantor" means (i) each of Celebrity Cruise Lines Inc., RCI Holdings LLC, RCL Cruise Holdings LLC and RCL Cruises Ltd (and each of their respective successors) and (ii) any other entity that becomes a First Priority Guarantor, a Second Priority Guarantor or a Third Priority Guarantor after the effectiveness of the Amendment Number One.
"Material Litigation" is defined in Section 6.7.
"Maximum Loan Amount" is defined in the preamble.
"Mitigation Period" is defined in Section 11.17(a).
“Monthly Outflow” means, in respect of each monthly period, the quotient obtained by dividing:
a)    the sum of (i) Total Cruise Operating Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (ii) Marketing, Selling and Administrative Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter and (iii) Interest Expense, net of Interest Capitalized (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter minus (x) Interest Income (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (y) any non-cash charges or impairments included in the calculation of Total Cruise Operating Expenses or Marketing, Selling and Administrative Expenses pursuant to sub-clause (i) or (ii) of this definition and (z) any loss on extinguishment of debt included in
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Interest Expenses, net of Interest Capitalized (as each such capitalized expression is defined or referenced in the financial statements of the Borrower); by
b)    three,
as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
"Moody's" means Moody's Investors Service Inc.
"Net Debt" means, at any time, the aggregate outstanding principal amount of all debt (including, without limitation, the principal portion of all Capitalised Lease Obligations and excluding, for the avoidance of doubt, operating lease liabilities) of the Borrower and its Subsidiaries (determined on a consolidated basis in accordance with GAAP) less the sum of (without duplication);
(a)    all cash on hand of the Borrower and its Subsidiaries; plus
(b)    all Cash Equivalents.
"Net Debt to Capitalisation Ratio" means, as at any date, the ratio of (a) Net Debt on such date to (b) Capitalisation on such date.
“New Capital” means the aggregate gross amount of proceeds from any capital (whether in the form of debt, equity or otherwise) raised by the Borrower or any of its Subsidiaries in one or a series of financings after January 1, 2021 (including (a) amounts borrowed (that were previously undrawn) under committed term loan facilities existing as of such date and (b) indebtedness borrowed in lieu of the committed term loan facilities described in the foregoing clause (a) if the incurrence of such indebtedness results in a reduction or termination of such commitments); provided that proceeds of any capital raise which are used substantially concurrently for (i) the purchase price of a new Vessel or (ii) repayment of existing Indebtedness (other than Indebtedness (A) maturing no later than the end of the first full calendar year following the date of such repayment or (B) under any revolving credit agreement the repayment of which is not accompanied by a corresponding permanent reduction in the related revolving credit commitments), in each case, shall not constitute New Capital.
"New Financings" means proceeds from:
(a)    borrowed money (whether by loan or issuance and sale of debt securities), including drawings under this Agreement and any revolving credit facilities, and
(b)    the issuance and sale of equity securities.
"New Subsidiary Guarantor" means, with respect to any Vessel delivered after the effectiveness of Amendment Number One, the Subsidiary of the Borrower that (a) directly owns the Equity Interests of the Principal Subsidiary that acquired such Vessel and (b) delivers an Additional Guarantee.
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"New Subsidiary Guarantor Subordination Agreement" means a subordination agreement pursuant to which the Lenders' rights under the applicable Additional Guarantee will be fully subordinated in right of payment to the rights of the beneficiaries of the applicable Senior Guarantee, which subordination agreement shall be in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and the agent, trustee or other representative for such Senior Guarantee.
"Non-Guarantor Related Change in Law" means a Change in Law other than a Change in Law that (a) specifically relates to the Borrower or (b) relates to companies that are organized under the law of the jurisdiction of organization or place of residence of the Borrower (but not to borrowers generally).
“Non-Financed Capex” means, with respect to any period, (a) the aggregate amount of purchases of property (including Vessels) and equipment by the Borrower and its Subsidiaries during such period as determined in good faith by the Borrower minus (b) the aggregate amount of committed financing available to be drawn during such period to fund any such purchases of property and equipment.
"Nordea Agreement" means the U.S.$1,150,000,000 amended and restated credit agreement dated as of October 12, 2017, among the Borrower, as the borrower, the various financial institutions as are or shall become parties thereto and Nordea Bank AB (publ), New York Branch as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
"Obligations" means all obligations (payment or otherwise) of the Obligors arising under or in connection with this Agreement.
"Obligors" means (a) prior to the date of Amendment Number Three, the Borrower, the Original Borrower and the Security Enhancement Guarantors and (b) on and following the date of Amendment Number Three, the Borrower and the Security Enhancement Guarantors only.
"Option A Refinancing Agreement" means a refinancing agreement entered into between KfW and any Lender pursuant to Section 1.2.1 of the Terms and Conditions, substantially in the form of Exhibit D hereto.
"Option A Lender" means each Lender that has executed an Option A Refinancing Agreement.
"Option B Interest Make-Up Agreement" means an interest make-up agreement entered into between KfW and any Lender pursuant to Section 1.2.2 of the Terms and Conditions.
"Option B Lender" means each Lender that has executed an Option B Interest Make-Up Agreement.
"Option Period" is defined in Section 3.2(d).
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"Organic Document" means, relative to each Obligor, its articles of incorporation (inclusive of any articles of amendment to its articles of incorporation) and its by-laws or other applicable constitutional documents.
“Original Hermes Fee” means the premium payable to Hermes under and in respect of the Hermes Insurance Policy with respect to the Original Loan Amount.
“Original Loan Amount” means the Maximum Loan Amount immediately prior to the Amendment Three Effective Date under Amendment Number Three (and being up to the US Dollar Equivalent of EUR351,580,000).
"Other ECA Parties" means the facility agents acting on behalf of the creditors under any ECA Financing, whether existing on or after the effectiveness of Amendment Number One (excluding the Facility Agent acting in any representative capacity in connection with this Agreement).
"Other Guarantees" means the guarantees issued, or to be issued, by any of the First Priority Guarantor, the Second Priority Guarantors, the Third Priority Guarantor or any New Subsidiary Guarantor in favour of any Other ECA Party; provided that any Other Guarantee issued by (a) the First Priority Guarantor shall be pari passu in right of payment with the First Priority Guarantee, (b) any Second Priority Guarantor shall be pari passu (or junior) in right of payment with the Second Priority Guarantee, (c) the Third Priority Guarantor shall be pari passu (or junior) in right of payment with the Third Priority Guarantee and (d) any New Subsidiary Guarantor shall be pari passu in right of payment with each Additional Guarantee issued by such New Subsidiary Guarantor.
"Other Senior Parties" means each agent, trustee or other representative in respect of Bank Indebtedness or Credit Card Obligations.
“Pari Passu Creditor” means with respect to any Group Member, any creditor under or in respect of any Indebtedness incurred by such Group Member (including in respect of any ECA Financing) which is not, as at December 31, 2020, secured by a Lien over a Vessel or which, at any time (whether pursuant to the operation of Section 7.1.10(d) or otherwise), shares in the same security and/or guarantee package as the Lenders.
"Participant" is defined in Section 11.11.2.
"Participant Register" is defined in Section 11.11.2.
"Participating Member State" means any member state of the European Union that has
EUR as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
"Percentage" means, relative to any Lender, the percentage set forth opposite its signature hereto or as set out in the applicable Lender Assignment Agreement, as such percentage may be adjusted from time to time pursuant to Section 4.9 or pursuant to Lender Assignment
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Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered pursuant to Section 11.11.1.
"Permitted Refinancing" means, in respect of any Indebtedness or commitments outstanding at the time of such Permitted Refinancing, any amendment, restatement, extension, renewal, refinancing or replacement that does not increase the aggregate principal amount of such Indebtedness or commitments outstanding at the time of such Permitted Refinancing other than by the amount of unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses associated with such amendment, restatement, supplement, refinancing or other modification.
"Person" means any natural person, corporation, limited liability company, partnership, firm, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity.
"Pledge Agreement" means a pledge agreement substantially in the form of Exhibit E.
"Pledged Accounts" means the EUR Pledged Account and the Dollar Pledged Account and "Pledged Account" means either of them.
“Poseidon Principles” means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published in June 2019 as the same may be amended or replaced to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organisation from time to time.
"Prepayment Event" is defined in Section 9.1.
"Principal Subsidiary" means any Subsidiary of the Borrower that owns a Vessel.
"Principles" means the document titled "Cruise Debt Holiday Principles" and dated March 26, 2020 in the form of Exhibit F hereto which sets out certain key principles and parameters relating to, amongst other things, the temporary suspension of repayments of principal in connection with certain qualifying Loan Agreements (as defined therein) and being applicable to Hermes-covered loan agreements such as this Agreement.
"Purchase Price" means, with respect to any Vessel, the book value of such Vessel at the time initially acquired by a Principal Subsidiary.
"Purchased Vessel" is defined in the preamble.
"Reference Banks" means, if the LIBO Rate or, as the case may be, EURO Rate for any Interest Period cannot be determined pursuant to paragraph (a) of the definition of "LIBO Rate" or, as the case may be, "EURO Rate", those banks designated as Reference Banks by the Facility Agent from time to time that are reasonably acceptable to the Borrower, and each additional Reference Bank and/or each replacement Reference Bank appointed by the Facility Agent pursuant to Section 3.4.6.

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"Register" is defined in Section 11.11.3.
"Repayment Date" means each of the dates for payment of the repayment instalments of the Loan pursuant to Section 3.1.
"Required Lenders" means, at any time, Lenders that in the aggregate, hold more than 50% of the aggregate unpaid principal amount of the Loan or, if no such principal amount is then outstanding, Lenders that in the aggregate have more than 50% of the Commitments.
“Restricted Credit Enhancement” means any Group Member Guarantee, Lien or other security or other similar or analogous credit support arrangement granted by a Group Member in respect of any Indebtedness of a Group Member.
“Restricted Loan Arrangement” means any loan or credit (including any seller’s credit granted in connection with the sale of a Vessel or other assets (and providing that any such sale complies with the provisions of Section 9.1.13(c))) made available by a Group Member to any Person but excluding any such loan or credit that is provided:
(a)    to another Group Member:
(b)    to a Person in respect of which the Borrower or any Subsidiary holds Equity Interests;
(c)    in circumstances where the relevant credit is a seller’s credit granted by that Group Member in the ordinary course of industry business and consistent with past practice; or
(d)    in circumstances where the relevant credit is otherwise in the ordinary course of business and/or consistent with past practice (it being agreed that any loans provided by the Group to its travel agents, vendors or customers to assist the Group during the crisis and/or recovery will be considered in the ordinary course of business) and where the aggregate amount of such credit referred to in this paragraph (d) does not exceed $100,000,000 (or its equivalent in any other currency) at any relevant time,
provided that no Group Member shall be permitted to make or grant any new loan or other credit (or make any further advances in respect of any existing loan or other credit) of any kind to any Person at any time where an Event of Default or a Prepayment Event has occurred and is continuing. It is agreed that for the purpose of this definition “credit” shall not include any short term trade and/or operational receivables owing to a Group Member by a Person who is not a Group Member and which are created or arise in the ordinary course of business.
“Restricted Payments” means any dividend or other distribution (whether in cash, securities or other property (other than Equity Interests)), with respect to any Equity Interests in the Borrower, or any payment (whether in cash, securities or other property (other than Equity Interests)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrower.
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“Restricted Voluntary Prepayment” means, in respect of any Indebtedness for borrowed money of any Group Member, the relevant Group Member elects to prepay, repay or redeem that Indebtedness prior to its scheduled maturity date other than:
(a)    any Indebtedness incurred (i) prior to March 1, 2020 or (ii) between March 1, 2020 and December 31, 2022 (but for this purpose excluding Indebtedness incurred pursuant to an ECA Financing) and whether pursuant to an amendment and extension of the agreements evidencing such Indebtedness and/or using proceeds raised by any Group Member in connection with any issuance of capital (whether in the form of Indebtedness for borrowed money, equity or otherwise but, in the case of any Indebtedness, subject to that Indebtedness being incurred in compliance with the carve-out provision set out in paragraph (c) of the definition of Debt Incurrence) or pursuant to the exercise of the equity claw feature in the Secured Note Indenture;
(b)    pursuant to a voluntary repayment under a revolving credit facility that does not result in the permanent reduction of the relevant revolving credit commitments under that revolving credit facility; and/or
(c)    where such prepayment, repayment or redemption is made solely for the purpose of avoiding an event of default or acceleration under the terms of the facility agreement in respect of the relevant Indebtedness,
and provided that in the case of each of paragraph (a) to (c) above, in no circumstances shall a Group Member apply excess cash in prepayment, repayment or redemption of any such Indebtedness under any ‘cash sweep’ mechanism or similar prepayment provision (and if excess cash is used in this manner in connection with any such prepayment, repayment or redemption the carve out above shall not apply).
"S&P" means Standard & Poor's Financial Services LLC, currently a wholly-owned subsidiary of The McGraw Hill Financial Inc.
"Sanctioned Country" means, at any time, a country, region or territory which is itself the subject or target of any Sanctions.
"Sanctioned Person" means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state, or any person owned or controlled by any such Person or Persons, or (b) any Person operating or organised in a Sanctioned Country.
"Sanctions" means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty's Treasury of the United Kingdom.
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"Scheduled Unavailability Date" means where the administrator of the Screen Rate or a governmental authority having jurisdiction over the Facility Agent has made a public statement identifying a specific date after which the Screen Rate shall no longer be made available, or used for determining the interest rate of loans, that specific date.
"Screen Rate" means:
(a)    in relation to Dollars, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for US Dollars for the relevant period displayed on page LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and
(b)    in relation to EUR, the euro interbank offered rate administered by the Banking Federation of the European Union (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate),
or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.
"Screen Rate Replacement Event" means:
(a)    if the Facility Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Facility Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i)    adequate and reasonable means do not exist for ascertaining the LIBO Rate or, as the case may be, the EURO Rate for any requested Interest Period, including, without limitation, because the Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii)    a Scheduled Unavailability Date has occurred; or
(iii)    syndicated loans currently being executed, or that include language similar to that contained in this definition, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate or, as the case may be, the EURO Rate; or
(b)    in the opinion of the Facility Agent and the Borrower, that Screen Rate is no longer appropriate for the purposes of calculating interest under this Agreement, including, but not limited to, as a result of (A) a substantial change in the economic characteristics or method of calculation of the Screen Rate, (B) any
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withdrawal of the administrator's right to publish the Screen Rate or (C) any prohibition for financial institutions to use the Screen Rate.
"SEC" means the United States Securities and Exchange Commission and any successor thereto.
"Second Fee" is defined in Section 11.13.
"Second Priority Assets" means the Vessels known on the date Amendment Number One becomes effective as or that sailed under the name (i) Azamara Quest, (ii) Azamara Pursuit, (iii) Azamara Journey, (iv) Celebrity Edge, (v) Celebrity Apex, (vi) Celebrity Flora, (vii) Celebrity Xpedition, (viii) Celebrity Xperience, (ix) Celebrity Xploration, (x) Monarch, (xi) Horizon and (xii) Sovereign (it being understood that such Vessels shall remain "Second Priority Assets" regardless of any change in name or ownership after such date).
"Second Priority Guarantee" means the second priority guarantee granted by the Second Priority Guarantors on or prior to the effectiveness of Amendment Number One (and any other second priority guarantee granted by a Second Priority Holdco Subsidiary in connection with becoming a Second Priority Guarantor) in favour of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit I.
"Second Priority Guarantors" means RCL Cruise Holdings LLC, Torcatt Enterprises Limitada, RCL Holdings Cooperatief UA, RCL Cruises Ltd and RCL Investments Ltd (and any of their respective successors) and any other Second Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Second Priority Holdco Subsidiary pursuant to a Disposal of a Second Priority Asset in accordance with Section 7.2.8(b)(iii)(A), will grant a Second Priority Guarantee.
"Second Priority Holdco Subsidiaries" means (a) RCL Cruises Ltd. or any other Subsidiaries of the Borrower that directly own all of the Equity Interests in (i) RCL TUI Cruises German Verwaltungs GmbH and (ii) RCL TUI Cruises German Holding GmbH & Co. KG and (b) one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Second Priority Asset. For the avoidance of doubt, Second Priority Holdco Subsidiaries shall not include any Principal Subsidiary.
"Second Priority Release Event" means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of Amendment Number One (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of Amendment Number One (being $3,320,000,000):
(a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and

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(b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Second Priority Guarantors in respect of the Bank Indebtedness.
Notwithstanding the foregoing, a Second Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Second Priority Release Event would have occurred but for the continuance of the payment default described above, then a Second Priority Release Event will occur immediately upon that payment default being remedied.
"Secured Note Indebtedness" means the Borrower's Indebtedness under the Secured Note Indenture.
"Secured Note Indenture" means that certain Indenture, dated as of May 19, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time), in respect of the $1,000,000,000 10.875% senior secured notes due 2023 and $2,320,000,000 11.50% senior secured notes due 2025, by and among the Borrower, as issuer, the guarantors party thereto from time to time, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee and as security agent.
"Security Enhancement Guarantee" means the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee and (if applicable) any Additional Guarantee and "Security Enhancement Guarantees" means any or all of them.
“Security Enhancement Guarantee Release Date” means the date upon which the First Priority Release Event, the Second Priority Release Event and the Third Priority Release Event have all occurred and accordingly, subject to Section 7.2.8(g) (and in particular proviso (2) to such Section 7.2.8(g)), each of the Security Enhancement Guarantees has been released by the Facility Agent, and also being the date upon which, in accordance with Section 7.3, certain provisions of this Agreement shall be replaced by the provisions set out in Exhibit P.
"Security Enhancement Guarantor" means the provider of any Security Enhancement Guarantee from time to time and "Security Enhancement Guarantors" means any or all of them.
“Security Enhancement Guarantor Confirmation Agreement” has the meaning given to it in Amendment Number Three.
"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
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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).
"Senior Guarantee" means any guarantee by a New Subsidiary Guarantor of Indebtedness incurred by the Borrower or any of its Subsidiaries after the effectiveness of Amendment Number One; provided that the aggregate principal amount of Indebtedness guaranteed under any Senior Guarantee shall in no case exceed 10.0% of the Purchase Price of the relevant Vessel owned by the Principal Subsidiary of such New Subsidiary Guarantor that acquired such Vessel.
"Senior Parties" means each agent, trustee or other representative in respect of Unsecured Note Indebtedness or DDTL Indebtedness.
“Statement of Compliance” means a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.
"Stockholders' Equity" means, as at any date, the Borrower's stockholders' equity on such date, excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP, provided that any non-cash charge to Stockholders' Equity resulting (directly or indirectly) from a change after the 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.
"Subordination Agreement" means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee executed by the Facility Agent and any of the Senior Parties or Other Senior Parties.
"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.
"TARGET Day" means any day on which TARGET2 (the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007) is open for the settlement of payments in EUR.
"Terms and Conditions" means the general terms and conditions for CIRR Interest Make-Up in Ship Financing Schemes issued by the Federal Republic of Germany on February 7, 2018.
"Third Priority Assets" means the Vessels known on the date Amendment Number One becomes effective as (i) Symphony of the Seas, (ii) Oasis of the Seas, (iii) Harmony of the Seas, (iv) Spectrum of the Seas, (v) Quantum of the Seas, (vi) Ovation of the Seas and (vii) Anthem of the Seas (it being understood that such Vessels shall remain "Third Priority Assets" regardless of any change in name or ownership after the such date).
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"Third Priority Guarantee" means the third priority guarantee granted by RCI Holdings LLC on or prior to the effectiveness of Amendment Number One and any other third priority guarantee granted by a Third Priority Holdco Subsidiary in connection with becoming a Third Priority Guarantor) in favour of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit J.
"Third Priority Guarantor" means RCI Holdings LLC (and any of its successors) and any other Third Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Third Priority Holdco Subsidiary pursuant to a Disposal of a Third Priority Asset in accordance with Section 7.2.8(c)(iii)(A), will grant a Third Priority Guarantee.
"Third Priority Holdco Subsidiaries" means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Third Priority Asset.
"Third Priority Release Event" means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of Amendment Number One (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Unsecured Note Indebtedness and the DDTL Indebtedness outstanding as of the effectiveness of Amendment Number One (being, in aggregate, $1,700,000,000):
(a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
(b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Third Priority Guarantor in respect of the Unsecured Note Indebtedness, the DDTL Indebtedness and the Bank Indebtedness.
Notwithstanding the foregoing, a Third Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Third Priority Release Event would have occurred but for the continuance of the payment default described above, then a Third Priority Release Event will occur immediately upon that payment default being remedied.
"United States" or "U.S." means the United States of America, its fifty States and the District of Columbia.
"Unsecured Note Indebtedness" means the Borrower's Indebtedness under the Unsecured Note Indenture.
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"Unsecured Note Indenture" means that certain Indenture, dated as of June 9, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time) in respect of the $1,000,000,000 9.125% senior notes due 2023, by and among the Borrower, as issuer, the guarantors party thereto, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee.
"US Dollar Equivalent" means:
(a)    for the EUR amount payable in respect of the final (delivery) instalment of the Contract Price (excluding the portion thereof comprising the Buyer's Allowance), the total of such EUR amount converted to a corresponding Dollar amount as determined using the weighted average rate of exchange that the Borrower has agreed, either in the spot or forward currency markets, to pay its counterparties for the purchase of the relevant amount of EUR with Dollars for the payment of that final instalment of the Contract Price and including in such weighted average the spot rates for any EUR amounts due that have not been hedged by the Borrower; and
(b)    for all EUR amounts payable in respect of the Buyer's Allowance, the total of such EUR amounts converted to a corresponding Dollar amount as determined using the USD-to-EUR rate used by the Borrower to convert the relevant USD amount of the amount of the Buyer's Allowance into EUR for the purpose of the Builder invoicing the same to the Borrower in EUR in accordance with the Construction Contract.
Such rate of exchange under (a) above (whether forward or spot) shall be evidenced by foreign exchange counterparty confirmations. The US Dollar Equivalent of the portion of the Maximum Loan Amount under (a) above shall be calculated by the Borrower in consultation with the Facility Agent no less than three (3) Business Days prior to the proposed Disbursement Date, except where the Borrower elects the KfW Fixed Rate under Section 3.4.1(b), the US Dollar Equivalent shall be calculated at the same time as such KfW Fixed Rate. Such rate of exchange under (b) above shall be evidenced by the production prior to the Disbursement Date of the invoice from or on behalf of the Borrower to the Builder in respect of the Buyer's Allowance, which invoice shall contain the USD/EUR exchange rate used for determining the EUR amount of the Buyer's Allowance. The US Dollar amount of the Hermes Fee shall be calculated by Hermes and notified by the Facility Agent in writing to the Borrower as soon as practicable after Hermes issues its invoice therefor.
"US Dollar Maximum Loan Amount" means the US Dollar Equivalent of the Maximum Loan Amount.
"USD CIRR Cap" means 3.55% per annum.
"USD CIRR Floor" means the CIRR in respect of USD at the time of signing of the Construction Contract which is equal to 3.47% per annum.
"USD Fixed Rate Margin" means:
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(a)    in respect of the Loan (but excluding the Increase Tranche), 0.59% per annum; and
(b)    in respect of the Increase Tranche, 0.79% per annum.
"USD Floating Rate Margin" means:
(a)    in respect of the Loan (but excluding the Increase Tranche), 0.79% per annum; and
(b)    in respect of the Increase Tranche, 0.99% per annum.
"US Tax Obligor" means the Borrower, to the extent that it is resident for tax purposes in the U.S.
“Vessel” means a passenger cruise vessel owned by a Group Member.
SECTION 1.2. Use of Defined Terms; Other Definitional Provisions
(a)    Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall, when capitalised, have such meanings when used in each Loan Request and each notice and other communication delivered from time to time in connection with this Agreement or any other Loan Document.
(b)    "month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
i.    if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in the calendar month in which that period is to end (if there is one) or on the immediately preceding Business Day (if there is not);
ii.    if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
iii.    if a period begins on the last Business Day of a calendar month, that period shall end on the last Business Day in the calendar month in which that period is to end.
(c)    Any reference to a Loan Document or any other agreement or instrument is a reference to that Loan Document or other agreement or instrument as it may from time to time be amended, restated, novated or replaced, however fundamentally and, in respect of the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee, any Additional Guarantee, as also amended by the Security Enhancement Guarantor Confirmation Agreement 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
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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 1.3. Application of this Agreement to KfW IPEX as an Option A Lender
The parties to this Agreement are aware that KfW IPEX will not enter into an Option A Refinancing Agreement with KfW. However, for the purposes of this Agreement, KfW IPEX will be deemed to have entered into an Option A Refinancing Agreement with KfW in the form of Exhibit D. Consequently, any reference to an Option A Lender shall include KfW IPEX and any reference to an Option A Refinancing Agreement shall include the Option A Refinancing Agreement deemed to have been entered into by KfW IPEX.
SECTION 1.4. Accounting and Financial Determinations
Unless otherwise specified, all accounting terms used herein or in any other Loan Document shall be interpreted, all accounting determinations and computations hereunder or thereunder (including under Section 7.2.4) shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with United States generally accepted accounting principles ("GAAP") consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies); provided that if the Borrower elects to apply or is required to apply International Financial Reporting Standards ("IFRS") accounting principles in lieu of GAAP, upon any such election and notice to the Facility Agent, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided further that if, as a result of (i) any change in GAAP or IFRS or in the interpretation thereof or (ii) the application by the Borrower of IFRS in lieu of GAAP, in each case, after the date of the financial statements referred to in Section 6.15, there is a change in the manner of determining any of the items referred to herein or therein that are to be determined by reference to GAAP, and the effect of such change would (in the reasonable opinion of the Borrower or the Facility Agent) be such as to affect the basis or efficacy of the financial covenants contained in Section 7.2.4 in ascertaining the consolidated financial condition of the Borrower and its Subsidiaries and the Borrower notifies the Facility Agent that the Borrower requests an amendment to any provision hereof to eliminate such change occurring after the date hereof in GAAP or the application thereof on the operation of such provision (or if the Facility Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), then such item shall for the purposes of such Sections of this Agreement continue to be determined in accordance with GAAP relating thereto as if GAAP were applied immediately prior to such change in GAAP or in the interpretation thereof until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding the foregoing, all obligations of any person that are or would be characterized as operating lease obligations in accordance with GAAP as in effect on 31 December 2018 (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations for the purposes of this Agreement regardless of any change in GAAP on or following 31 December 2018 that would otherwise require such obligations to be recharacterized (on a prospective or retroactive basis or otherwise) as capitalized leases; provided that, for clarification purposes, operating leases recorded as
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liabilities on the balance sheet due to a change in accounting treatment, or otherwise, shall for all purposes not be counted as Indebtedness, Capital Lease Obligations or Capitalised Lease Liabilities.
SECTION 1.5. Contractual Recognition of Bail-In
Notwithstanding any other term of any Loan Document or any other agreement, arrangement or understanding between the parties to this Agreement, each such party acknowledges and accepts that any liability of any party to this Agreement to any other party to this Agreement under or in connection with the Loan Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
(a)    any Bail-In Action in relation to any such liability, including (without limitation):
i.    a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
ii.    a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
iii.    a cancellation of any such liability; and
(b)    a variation of any term of any Loan Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
In this Section 1.6:
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
"Bail-In Action" means the exercise of any Write-down and Conversion Powers.
"Bail-In Legislation" means:
(a)    in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time;
(b)    in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation; and
(c)    in relation to the United Kingdom, the UK Bail-In Legislation.
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"EEA Member Country" means any Member State of the European Union, Iceland, Liechtenstein and Norway.
"EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
"UK Bail-In Legislation" means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
"Write-down and Conversion Powers" means:
(a)    in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
(b)    in relation to any other applicable Bail-In Legislation other than the UK Bail-In Legislation:
i.    any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
ii.    any similar or analogous powers under that Bail-In Legislation; and
(c)    in relation to the UK Bail-In Legislation, any powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under the UK Bail-In Legislation that are related to or ancillary to any of those powers.
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ARTICLE II
COMMITMENTS AND BORROWING PROCEDURES
SECTION 2.1. Commitment
On the terms and subject to the conditions of this Agreement (including Article V), each Lender severally agrees to make its portion of the relevant part of the Loan pursuant to its Commitment set out in Exhibit Q. No Lender's obligation to make its portion of the relevant part of Loan shall be affected by any other Lender's failure to make its portion of the Loan. Only an Increase Lender shall be obliged to make available the Increase Commitment.
SECTION 2.2. Commitment of the Lenders
(a)    Each Lender will make its portion of the relevant part of the Loan referred to in Section 2.1 available to the Borrower in accordance with Section 2.4 either two (2) Business Days prior to the delivery of the Purchased Vessel to the Borrower under the Construction Contract (where the Loan is to be denominated in Dollars) or one (1) Business Day prior to the delivery of the Purchased Vessel to the Borrower under the Construction Contract (where the Loan is to be denominated in EUR). The Commitment of each Lender shall be the commitment of such Lender to make available to the Borrower its portion of the Loan (which, in the case of the Increase Lenders, shall include the Increase Tranche).
(b)    Each Lender's Commitment shall terminate on the earlier of (i) the Commitment Termination Date if the Purchased Vessel is not delivered to the Borrower prior to such date and (ii) the delivery to the Borrower of the Purchased Vessel.
(c)    If any Lender shall default in its obligations under Section 2.1, the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Lender.
(d)    The Commitments in respect of the Original Loan Amount and the Increase Loan Amount shall be made available in one advance at the same time.
SECTION 2.3. Voluntary Reduction of Commitments
(a)    The Borrower may at any time terminate, or from time to time partially reduce, the Commitments upon written notice to the Facility Agent setting forth the amount of the reduction in the Commitments (the "Reduction Notice"). The requested reduction shall be effective two Business Days after the date of delivery of the Reduction Notice and shall be applied to the respective Commitments of the Lenders pro rata according to the amounts of their respective Commitments immediately prior to giving effect to such reduction.
(b)    If the Reduction Notice is delivered by the Borrower on or prior to the Election Date, the Borrower shall not incur any liability to make any payments pursuant to Section 4.4 or to incur any other indemnity or compensation obligation. If the
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Reduction Notice is delivered by the Borrower after the Election Date, the Borrower shall either (i) pay such compensation to the relevant Lender as required by, and in accordance with, Section 4.4 to the extent such Lender incurs a loss as set out in Section 4.4 or (ii) extend the Disbursement Date to a date that falls at least 65 days after the Reduction Notice was first delivered by the Borrower. In the event that the Borrower elects the option under the foregoing clause (ii), the Borrower shall deliver a Loan Request to the Facility Agent in accordance with Section 2.4(a), and the proposed Disbursement Date set out in such Loan Request shall be a date that falls at least 65 days after the Reduction Notice was first delivered by the Borrower.
Where the Commitments are terminated or reduced pursuant to this Section 2.3, the Borrower shall pay to the Facility Agent and the Lenders any fees and commissions that have accrued to but excluding the date of termination or partial reduction (but, in the case of a partial reduction of Commitments, only in respect of the amount of the partial reduction). Any such payment shall be made on the second (2nd) Business Day following receipt by the Borrower of an invoice setting forth the accrued fees and commissions so payable.
SECTION 2.4. Borrowing Procedure
(a)    The Borrower shall deliver a Loan Request and the documents required to be delivered pursuant to Section 5.1.1(a) to the Facility Agent:
i.    where the Loan is to be denominated in Dollars, on or before 11:00 a.m. London time not less than two (2) Business Days in advance of the date that is two (2) Business Days prior to the anticipated Delivery Date; or
ii.    where the Loan is to be denominated in EUR, on or before 10.00 a.m. London time not less than two (2) Business Days in advance of the date that is one (1) Business Day prior to the anticipated Delivery Date.
The aggregate amount of the Loan to be advanced shall not exceed the US Dollar Maximum Loan Amount if the Loan is denominated in USD or, as the case may be, the Maximum Loan Amount where an election has been made for the Loan to be denominated in EUR pursuant to Section 2.4(e). For the purposes of determining the Maximum Loan Amount, the Contract Price will be established at the time of the issue of the Loan Request.
(b)    The Facility Agent shall promptly notify each Lender of any Loan Request by forwarding a copy thereof to each Lender, together with its attachments. On the terms and subject to the conditions of this Agreement, the Loan shall be made on the Business Day specified in such Loan Request. On or before 2:00 p.m., London time, on the Business Day specified in such Loan Request, each Lender shall, without any set-off or counterclaim, deposit with the Facility Agent same day Dollar or, as the case may be, EUR funds in an amount equal to such Lender's Percentage of the requested Loan. Such deposit will be made to an account which the Facility Agent shall specify from time to time by notice to the Lenders. To the
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extent funds are so received from the Lenders, the Facility Agent shall, without any set-off or counterclaim, make such funds available to the Borrower on the Business Day specified in the Loan Request by wire transfer of same day funds in accordance with Section 2.4(c) below.
(c)    If the Loan is denominated in EUR, the Facility Agent shall advance the Loan proceeds to the EUR Pledged Account. If the Loan is to be denominated in USD, the Borrower shall, upon receipt of the Dollar funds into the account referred to in Section 2.4(b) above, (i) complete the purchase of EUR with its counterparties or otherwise as set out in the Loan Request (by authorising and instructing the Facility Agent to remit the necessary Dollar funds to the said counterparties) and shall procure the payment of all EUR proceeds of such transactions to the EUR Pledged Account no later than the Business Day immediately following the Business Day specified in the Loan Request and (ii) to the extent of any such Dollar funds as shall not be used to purchase EUR, shall procure (by authorising and instructing the Facility Agent accordingly) the payment of such Dollar funds to the Dollar Pledged Account on the Disbursement Date.
(d)    Upon the date of delivery to the Borrower of the Purchased Vessel, the Facility Agent shall direct that moneys standing to the credit of the Pledged Accounts shall, in the manner set out in the Loan Request and in accordance with the requirements and provisions of the Pledge Agreement, be disbursed as follows:
i.    in EUR, to the account of the Builder, as designated by the Builder and identified by the Borrower in the Loan Request, to the extent necessary to meet the final instalment of the Contract Price (including any portion thereof attributable to the Buyer's Allowance); and
ii.    
A.    if the Loan is denominated in Dollars, in Dollars, (y) to Hermes in payment of the Second Fee; and (z) to the account of the Borrower, as designated by the Borrower and identified by the Borrower in the Loan Request, in reimbursement of the First Fee and in respect of any additional amounts standing to the Dollar Pledged Account as of the date of such disbursement; or
B.    if the Loan is denominated in EUR, in EUR, to the account of the Borrower, as designated by the Borrower and identified by the Borrower in the Loan Request, in reimbursement of the Hermes EUR Equivalent of the First Fee and the Second Fee,
    and such moneys shall be so disbursed on the said date of delivery.
(e)    At any time after the Effective Date, but no later than the Election Date, the Borrower may elect, by written notice delivered to the Facility Agent substantially in the form of Exhibit F hereto, to denominate the Loan in EUR. Such election will
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be irrevocable. The Facility Agent will notify the Lenders of any election made under this Section 2.4(e).
SECTION 2.5. Funding
Each Lender may, if it so elects, fulfil its obligation to make or continue its portion of the Loan hereunder by causing a branch or Affiliate (or an international banking facility created by such Lender) other than that indicated next to its signature to this Agreement or, as the case may be, in the relevant Lender Assignment Agreement, to make or maintain such portion of the Loan; provided that such portion of the Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay such portion of the Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility; provided, further, that the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had the Lender not caused such branch or Affiliate (or international banking facility) to make or maintain such portion of the Loan.
SECTION 2.6. Nomination of Royal Caribbean Cruises Ltd. as Borrower
(a)    Silversea Cruise Holding Ltd. and Royal Caribbean Cruises Ltd. may, by written notice to the Facility Agent delivered on or prior to the Election Date, nominate Royal Caribbean Cruises Ltd. to be the borrower under this Agreement.
(b)    If Royal Caribbean Cruises Ltd. is nominated as borrower under Section 2.6, on and from the date of receipt of that notice by the Facility Agent:
i.    Royal Caribbean Cruises Ltd. shall be released from its obligations set out in Article XII, Article XII shall cease to apply and all references to "Guarantor" set out in this Agreement shall be deemed to be reference to Royal Caribbean Cruises Ltd. in its capacity as Borrower;
ii.    references to "the Borrower" shall be references to Royal Caribbean Cruises Ltd.;
iii.    Silversea Cruise Holding Ltd. will cease to be a party to, or to have any rights or obligations under, this Agreement; and
iv.    Section 11.19 will be deemed to be deleted.
(c)    It is acknowledged and agreed that, pursuant to this Section 2.6 and clause 5 of Amendment Number Three, Silversea Cruise Holding Ltd. and Royal Caribbean Cruises Ltd. nominated Royal Caribbean Cruises Ltd. as the borrower under this Agreement. In connection with such nomination, this Agreement has, with effect from the Amendment Three Effective Date, been amended and restated to reflect, amongst other things, the matters referred to in paragraph (b) above.
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments
(a)    Subject to Section 3.1(b), the Borrower shall repay the Loan in 24 equal semi-annual instalments, with the first instalment to fall due on the date falling six (6) months after the Disbursement Date and which must be a date no later than 30 June 2024 (being the date falling six months after Commitment Termination Date) and the final instalment to fall due on the date of Final Maturity.
(b)    If, on the date of delivery to the Borrower of the Purchased Vessel, the outstanding principal amount of the Loan exceeds the US Dollar Maximum Loan Amount or, as the case may be, the Maximum Loan Amount if an election is made for the Loan to be denominated in EUR pursuant to Section 2.4(e) (as a result of a reduction in the Contract Price after the Disbursement Date and before the delivery of the Purchased Vessel), the Borrower shall repay the Loan in an amount equal to such excess within two (2) Business Days after the date of delivery to the Borrower of the Purchased Vessel. Any such partial prepayment shall be applied pro rata in satisfaction of the remaining scheduled repayment instalments of the Loan.
(c)    No amount repaid by the Borrower pursuant to this Section 3.1 may be re-borrowed under the terms of this Agreement.
SECTION 3.2. Prepayment
(a)    The Borrower:
i.    may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of the Loan; provided that:
a.    all such voluntary prepayments shall require (x) for prepayments on or after the Disbursement Date made prior to delivery to the Borrower of the Purchased Vessel in respect of the advance made on the Disbursement Date, at least two (2) Business Days' prior written notice from the Borrower to the Facility Agent, and (y) for all other prepayments, at least 30 calendar days' prior written notice, if all or any portion of the Loan is a Fixed Rate Loan, and at least five (5) Business Days' (or, if such prepayment is to be made on the last day of an Interest Period for such Loan, four (4) Business Days') prior written notice, if the Loan is a Floating Rate Loan, in each case from the Borrower to the Facility Agent; and
b.    all such voluntary partial prepayments shall be in an aggregate minimum amount of $10,000,000 and a multiple of $1,000,000 or, where the Loan is denominated in EUR, €10,000,000 and a multiple
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of €1,000,000 (or in the remaining amount of the Loan) and shall be applied in inverse order of maturity or ratably among all remaining instalments, as the Borrower shall designate to the Facility Agent, in satisfaction of the remaining repayment instalments of the Loan; and
ii.    shall, immediately upon any acceleration of the repayment of the instalments of the Loan pursuant to Section 8.2 or 8.3 or the mandatory prepayment of the Loan pursuant to Section 9.2, repay the Loan.
(b)    If, by reason of a Change in Law, it becomes unlawful under any applicable law (i) for a Lender to be subject to a commitment to make available to the Borrower such Lender's portion of the Loan hereunder as provided in Section 2.2, (ii) for a Lender to make or hold its portion of the Loan in its Lending Office, (iii) for a Lender to receive a payment under this Agreement or any other Loan Document or (iv) for a Lender to comply with any other material provision of, or to perform its obligations as contemplated by, this Agreement or any other Loan Document, the Lender affected by such Change in Law may give written notice (the "Illegality Notice") to the Borrower and the Facility Agent of such Change in Law, including reasonable details of the relevant Change of Law. Any Illegality Notice must be given by a Lender no later than 120 days after such Lender first obtains actual knowledge or written notice of the relevant Change in Law.
(c)    If an affected Lender delivers an Illegality Notice prior to the Disbursement Date, then, subject to Section 11.17, (1) whilst the arrangements contemplated by the following clause (2) have not yet been completed and the Commitment of such Lender has not been formally cancelled, such Lender shall not be obliged to fund its Commitment and (2) the Borrower shall be entitled at any time within 50 days after receipt of such Illegality Notice to replace such Lender with one or more financial institutions (I) reasonably acceptable to the Facility Agent, (II) meeting the criteria set out in Section 2.2 of the Terms and Conditions, (III) acceptable to Hermes and (IV) in the case of a replacement of an Option A Lender, reasonably acceptable to KfW; provided that any such assignment shall be either (x) in the case of a single assignment, an assignment of all of the rights and obligations of the assigning Lender under this Agreement or (y) in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement. If, at the end of such 50-day period, the Borrower has not so replaced such affected Lender as aforesaid and no alternative arrangements have been implemented pursuant to Section 11.17, the Commitment held by such Lender shall be cancelled.
(d)    If an affected Lender delivers an Illegality Notice on or following the Disbursement Date, then the Borrower shall have the right, but not the obligation, exercisable at any time within 50 days after receipt of such Illegality Notice (the "Option Period"), either (1) to prepay the portion of the Loan held by such Lender in full on or before the expiry of the Option Period, together with all unpaid interest and fees thereon accrued to but excluding the date of such prepayment, or (2) to replace such Lender
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on or before the expiry of the Option Period with one or more financial institutions (I) reasonably acceptable to the Facility Agent, (II) meeting the criteria set out in Section 2.2 of the Terms and Conditions, (III) acceptable to Hermes and (IV) in the case of a replacement of an Option A Lender, reasonably acceptable to KfW; provided that (x) in the case of a single assignment, any such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or, in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement and (y) no Lender shall be obligated to make any such assignment as a result of an election by the Borrower pursuant to this Section 3.2(d) unless and until such Lender shall have received one or more payments from one or more Assignee Lenders and/or the Borrower in an aggregate amount at least equal to the portion of the Loan held by such Lender, together with all unpaid interest and fees thereon accrued to but excluding the date of such assignment (and all other amounts then owing to such Lender under this Agreement).
(e)    Each prepayment of the Loan made pursuant to this Section 3 shall be without premium or penalty, except as may be required by Section 4.4. No amounts prepaid by the Borrower may be re-borrowed under the terms of this Agreement except as provided in Section 3.7 and the last paragraph of Section 9.1 (which follows Section 9.1.11).
SECTION 3.3. Right of cancellation in relation to a Defaulting Lender
(a)    If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting Lender (but only with the prior consent of the Hermes) give the Facility Agent 10 Business Days' notice of cancellation of each Commitment of that Lender.
(b)    On the notice referred to in paragraph (a) above becoming effective, each Commitment of the Defaulting Lender shall immediately be reduced to zero.
(c)    The Facility Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.
SECTION 3.4. Interest Provisions.
Interest on the outstanding principal amount of the Loan shall accrue and be payable in accordance with this Section 3.4.
SECTION 3.4.1. Rates.
(a)    The Loan shall accrue interest from the Disbursement Date to the date of repayment or prepayment of the Loan in full to the Lenders at the Fixed Rate, subject to (i) any election made by the Borrower to elect the Floating Rate
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pursuant to Section 3.4.2 and (ii) any conversion of any portion of the Loan held by a Lender to a Floating Rate Loan upon the termination of the CIRR Agreement to which such Lender is a party in accordance with Section 3.4.3 (and, in which case, the Loan shall accrue interest at the Floating Rate). Interest calculated at the Fixed Rate or the Floating Rate shall be payable semi-annually in arrears on the Repayment Dates. The Loan shall bear interest for each Interest Period, from and including the first day of such Interest Period up to but excluding the last day of such Interest Period, at the interest rate determined as applicable to the Loan for such Interest Period. All interest shall be calculated on the basis of the actual number of days elapsed over a year comprised of 360 days.
(b)    
(i)    By written notice to the Facility Agent delivered on or before the Election Date, the Borrower may, subject to the prior administrative approval of KfW acting on the instructions of the Federal Republic of Germany and where the Loan is to be denominated in EUR the election pursuant to Section 2.4(e) has been made before the date of such written notice, elect, without incurring any liability to make any payments pursuant to Section 4.4 or any other indemnity or compensation obligation, to pay interest on the Loan at the percentage rate per annum (the KfW Fixed Rate) equal to the aggregate of:
A.    the weighted average rate of interest (and having regard to the Percentage of the Commitment of each Lender) at which KfW (on behalf of each Option A Lender) and each Option B Lender is able to hedge its respective cost and fund its Commitment having regard to the currency and funding and payment profile of the Loan (and on the basis that the hedging by KfW shall be required to be approved by the Federal Republic of Germany), but which rate of interest shall, for this purpose, be neither a rate which is either (1) lower than (if an election has been made for the Loan to be denominated in EUR pursuant to Section 2.4(e)) the EUR CIRR Floor, otherwise, the USD CIRR Floor or, (2) higher than (if an election has been made for the Loan to be denominated in EUR pursuant to Section 2.4(e)) the EUR CIRR Cap, otherwise, the USD CIRR Cap; and
B.    the applicable Margin.
(ii)    In connection with the option to elect the KfW Fixed Rate set out above, at any time on or before the Election Date, the Borrower shall be entitled to consult with the Facility Agent and request that the Facility Agent obtains indicative quotes of the KfW Fixed Rate at or around the time of any such request and such indicative quotes (based on the relevant information provided by KfW and each Option B Lender) shall be forwarded by the Facility Agent to the Borrower. Each Option B Lender agrees to provide to the Facility Agent and KfW, promptly upon request, sufficient information and indicative rates of
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interest in relation to its hedging arrangements contemplated by this Section 3.4.1(b) to enable the indicative KfW Fixed Rate to be provided to the Borrower pursuant to this Section 3.4.1(b).
(c)    If, on or before the Election Date, the Borrower has neither elected the KfW Fixed Rate nor the Floating Rate in accordance with Section 3.4.1(b) above or Section 3.4.2 below, then it is acknowledged and agreed that on the date falling 64 days prior to the actual Disbursement Date (or, if such date is not a Business Day, the next Business Day following that date), the CIRR will be set by KfW (acting on the instructions of the Federal Republic of Germany in its sole discretion), with the CIRR to be a rate which is (i) equal to or higher than the USD CIRR Floor or, if an election has been made for the Loan to be denominated in EUR pursuant to Section 2.4(e), the EUR CIRR Floor and (ii) equal to or lower than the USD CIRR Cap or, if an election has also been made for the Loan to be denominated in EUR pursuant to Section 2.4(e), the EUR CIRR Cap. The Facility Agent shall notify the Borrower in writing by no later than the next Business Day of the CIRR so set by KfW. If notwithstanding the above arrangements, KfW does not set a CIRR on the date referred to above, then the USD CIRR Cap or, if an election has also been made for the Loan to be denominated in EUR pursuant to Section 2.4(e), the EUR CIRR Cap shall be set as the CIRR for the purpose of the Fixed Rate.
SECTION 3.4.2. Election of Floating Rate.
(a)    At any time prior to the Disbursement Date, and provided that the Borrower has not elected the KfW Fixed Rate pursuant to Section 3.4.1(b), the Borrower may elect to pay interest on the Loan at the Floating Rate by written notice (the "Floating Rate Election Notice") to the Facility Agent. If the Floating Rate Election Notice is delivered by the Borrower on or prior to the Election Date, the Borrower shall not incur any liability to make any payments pursuant to Section 4.4 or to incur any other indemnity or compensation obligation. If the Floating Rate Election Notice is delivered by the Borrower after the Election Date, the Borrower shall either (i) pay such compensation to the relevant Lender as required by, and in accordance with, Section 4.4 to the extent such Lender incurs a loss as set out in Section 4.4 or (ii) extend the Disbursement Date to a date that falls at least 65 days after the Floating Rate Election Notice was first delivered by the Borrower. In the event that the Borrower elects the option under the foregoing clause (ii), the Borrower shall deliver a Loan Request to the Facility Agent in accordance with Section 2.4(a), and the proposed Disbursement Date set out in such Loan Request shall be a date that falls at least 65 days after the Floating Rate Election Notice was first delivered by the Borrower.
(b)    If the Borrower has not elected the Floating Rate prior to the Disbursement Date as permitted by Section 3.4.2(a), the Borrower may elect, by written notice to the Facility Agent no later than 2:00 p.m. Frankfurt time 32 days prior to the end of an Interest Period and subject to Section 4.4, to pay interest on the Loan for the remainder of the term of the Loan at the Floating Rate, with effect from the end of that Interest Period.
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(c)    
(i)    If the Loan is denominated in Dollars and the Borrower has elected the Floating Rate pursuant to Section 3.4.2(a), provided that the Borrower has not elected the KfW Fixed Rate pursuant to Section 3.4.1(b), Interest Periods shall be for a duration of 6 months.
(ii)    If the Loan is denominated in EUR and the Borrower has elected the Floating Rate pursuant to Section 3.4.2(a), provided that the Borrower has not elected the KfW Fixed Rate pursuant to Section 3.4.1(b), Interest Periods shall be for a duration of 6 months.
(d)    Any election made under any of Section 3.4.2(a) or Section 3.4.2(b) may only be made one time during the term of the Loan and shall be irrevocable.
SECTION 3.4.3. Conversion to Floating Rate.
If, during any Interest Period, and where interest on the Loan is determined at the Fixed Rate, the CIRR Agreement in effect with any Lender is terminated for any reason (other than as a result of the negligence or wilful misconduct of such Lender), then the portion of the Loan held by such Lender shall convert to a Floating Rate Loan on the last day of such Interest Period, and the Borrower shall pay interest on such portion of the Loan at the Floating Rate on such portion for the remainder of the term of the Loan.
Notwithstanding the foregoing paragraph, the Borrower shall not be obligated to make any indemnity or compensation payment to any Lender in connection with any conversion to the Floating Rate unless (a) such conversion is a result of an election by the Borrower pursuant to Section 3.4.2 or (b) such conversion occurs as a result of any acceleration of the Loan due to the occurrence of an Event of Default.
SECTION 3.4.4. Post-Maturity Rates.
After the date any principal amount of the Loan is due and payable (whether on any Repayment Date, upon acceleration or otherwise), or after any other monetary Obligation of the Borrower shall have become due and payable, the Borrower shall pay, but only to the extent permitted by law, interest (after as well as before judgment) on such amounts for each day during the period while such payment is overdue at a rate per annum certified by the Facility Agent to the Borrower (which certification shall be conclusive in the absence of manifest error) to be equal to (a) in the case of (i) principal of and interest on the Loan payable to each Option A Lender or (ii) interest on the Loan payable to each Option B Lender, the sum of the Floating Rate plus 3% per annum and (b) in the case of any other monetary Obligation (including, without limitation, principal on the Loan payable to each Option B Lender), the sum of the Floating Rate plus 2% per annum.
SECTION 3.4.5. Payment Dates.
Interest accrued on the Loan shall be payable, without duplication, on the earliest of:
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(a)    each Repayment Date;
(b)    the date of any prepayment, in whole or in part, of principal outstanding on the Loan (but only on the principal so prepaid);
(c)    on that portion of the Loan the repayment of which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration; and
(d)    in the case of any interest on any principal, interest or other amount owing under this Agreement or any other Loan Document that is overdue, from time to time on demand of the Facility Agent until such overdue amount is paid in full.
SECTION 3.4.6. Interest Rate Determination; Replacement Reference Banks
The Facility Agent shall obtain from each Reference Bank timely information for the purpose of determining the LIBO Rate in the event that no relevant London interbank offered rate appears on Thomson Reuters LIBOR01 or LIBOR02 Page (or any successor page) and the LIBO Rate is to be determined by reference to quotations supplied by the Reference Banks. If any one or more of the Reference Banks shall fail to furnish in a timely manner such information to the Facility Agent for any such interest rate, the Facility Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Banks. If the Borrower elects to add an additional Reference Bank hereunder or a Reference Bank ceases for any reason to be able and willing to act as such, the Facility Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Bank reasonably acceptable to the Borrower, and such replaced Reference Bank shall cease to be a Reference Bank hereunder. The Facility Agent shall furnish to the Borrower, to the Borrower and to the Lenders each determination of the LIBO Rate made by reference to quotations of interest rates furnished by Reference Banks.
If an election is made for the Loan to be denominated in EUR pursuant to Section 2.4(e), the Facility Agent shall obtain from each Reference Bank timely information for the purpose of determining the EURO Rate in the event that no relevant London interbank offered rate appears on Thomson Reuters EURIBOR01 Page (or any successor page) and the EURO Rate is to be determined by reference to quotations supplied by the Reference Banks. If any one or more of the Reference Banks shall fail to furnish in a timely manner such information to the Facility Agent for any such interest rate, the Facility Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Banks. If the Borrower elects to add an additional Reference Bank hereunder or a Reference Bank ceases for any reason to be able and willing to act as such, the Facility Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Bank reasonably acceptable to the Borrower, and such replaced Reference Bank shall cease to be a Reference Bank hereunder. The Facility Agent shall furnish to the Borrower, to the Borrower and to the Lenders each determination of the EURO Rate made by reference to quotations of interest rates furnished by Reference Banks.
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SECTION 3.5. Commitment Fee.
The Borrower agrees to pay to the Facility Agent for the account of each Lender a commitment fee (the "Commitment Fee") on its daily unused portion of the Maximum Loan Amount (as such Maximum Loan Amount may be adjusted from time to time), for the period commencing on the Effective Date and continuing through the earliest to occur (the "Commitment Fee Termination Date") of (i) the Disbursement Date, (ii) the date upon which the Facility Agent has provided the Borrower with written notice that the Lenders will not advance the Loan because the Commitments have been terminated pursuant to Section 8.2 or 8.3, (iii) the Commitment Termination Date and (iv) the date the Commitments shall have been terminated pursuant to Section 2.3. Should the Facility Agent provide the Borrower notice that the Lenders will not advance the Loan because Hermes has cancelled the Hermes Insurance Policy, the Commitment Fee paid by the Borrower for the account of each Lender shall be promptly refunded to the Borrower by such Lender; provided however that (i) no Lender shall be obliged to refund any Commitment Fee to the Borrower in these circumstances if the cancellation of the Hermes Insurance Policy is primarily attributable to the Borrower and (ii) (where a refund is applicable) a Lender shall only be obliged to refund to the Borrower an amount equal to the sum of (x) the portion of the Commitment Fee that such Lender has not paid to KfW in accordance with the applicable CIRR Agreement and (y) the portion of the Commitment Fee that such Lender has so paid to KfW and that such Lender actually recovers from KfW in the event of the cancellation of the Hermes Insurance Policy (and each Lender agrees to request from KfW the amount of Commitment Fee that it has paid to KfW).
SECTION 3.5.1. Payment of Commitment Fee.
(a)    The Commitment Fee shall be payable by the Borrower to the Facility Agent for the account of each Lender quarterly in arrears, with the first such payment (the "First Commitment Fee Payment") to be made on the day falling three months following the Effective Date and the final such payment to be made on the Commitment Fee Termination Date (each date on which a Commitment Fee payment is required to be made in accordance with this Section 3.4.1 referred to herein as a "Commitment Fee Payment Date"). The Commitment Fee shall be in the amount in EUR equal to the product of the Applicable Commitment Rate, multiplied by, for each day elapsed since the preceding Commitment Fee Payment Date (or, in the case of the First Commitment Fee Payment, the Effective Date), the Maximum Loan Amount in effect on such day, divided by 360 days; provided that the Borrower may elect to pay the Commitment Fee on any Commitment Fee Payment Date in Dollars by giving notice to the Facility Agent five (5) Business Days before such date. If the Borrower elects to pay the Commitment Fee in Dollars, the exchange rate used to convert the fee from EUR to Dollars shall be the 10 A.M. midpoint market fixing for the conversion of EUR to Dollars set by the Federal Reserve Bank of New York two (2) Business Days prior to the relevant Commitment Fee Payment Date.
(b)    No commitment fee is payable to the Facility Agent (for the account of a Lender) on any Commitment of that Lender for any day on which that Lender is a Defaulting Lender.
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SECTION 3.6. CIRR Guarantee Charge.
SECTION 3.6.1. Generally
The Borrower agrees to pay to the Facility Agent for the account of KfW a fee of 0.01% per annum (the "CIRR Guarantee Charge") on the Maximum Loan Amount (having regard to the paragraph below) as at the Effective Date for the period commencing on 16 October 2019 (being the date that is six months after the date of the Construction Contract) and continuing until the earliest of (i) the date falling 60 days prior to the Disbursement Date, (ii) the date falling 32 days after either the date on which the Borrower elects the Floating Rate pursuant to Section 3.4.2 or, as to any portion of the Loan converted to a Floating Rate Loan pursuant to Section 3.4.3, the date on which such portion so converts to a Floating Rate Loan, (iii) the date falling 32 days after the date on which the Borrower elects to cancel all or part of the Commitments pursuant to Section 2.3, (iv) the date upon which the Facility Agent has provided written notice to the Borrower that the Lenders will not advance the Loan because the Commitments shall have been terminated pursuant to Sections 8.2 or 8.3 and (v) any other date on which the Commitments shall have been terminated.
SECTION 3.6.2. Payment.
The CIRR Guarantee Charge shall be payable by the Borrower in EUR quarterly in arrears commencing with the date falling three months after the commencement of the period described in Section 3.5.1 and thereafter on each subsequent three-month anniversary of such period and finally on the date on which the CIRR Guarantee Charge ceases to accrue as described in Section 3.5.1.
SECTION 3.7. Other Fees.
The Borrower agrees to pay to the Facility Agent the agreed-upon fees set forth in the Fee Letters on the dates and in the amounts set forth therein.
SECTION 3.8. Temporary Repayment.
If the proceeds of the Loan have not been utilised directly or indirectly to pay for delivery to the Borrower of the Purchased Vessel within 15 days after the initial Disbursement Date and have been deposited in accordance with Section 4.12, the Borrower may, by notice to the Facility Agent in accordance with Section 3.2(a) and specifying that such prepayment may be re-borrowed under this Agreement, prepay the Loan, together with accrued interest on the Loan so prepaid, and shall be entitled to utilise funds standing to the credit of the Pledged Accounts for the purpose of applying these in or towards satisfaction of such prepayment obligation. If the Purchased Vessel is subsequently delivered to the Original Borrower or the Borrower, the Borrower shall be permitted to submit one additional Loan Request in accordance with Section 2.4 to re-borrow the Loan previously prepaid under this Section; provided, however, that the date of funding of any such re-borrowed Loan shall not be later than the Commitment Termination Date and provided, further, that such date of funding shall be the Disbursement Date for all purposes hereunder with respect to such re-borrowed Loan. Prepayment of the Loan made
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pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4.
SECTION 3.9. Limit on Interest Make-Up.
If, in relation to any Interest Period during which any portion of the Loan held by a Lender carries interest at the Fixed Rate, the amount of the interest make-up to be received by such Lender pursuant to the applicable CIRR Agreement entered into by such Lender is limited to an annual rate of twelve per cent. (12%) per annum by virtue of the provisions of Section 1.1 of the Terms and Conditions, then the Borrower shall pay to the Facility Agent for the account of such Lender an additional amount by way of interest equal to the amount of the interest make-up forgone by the relevant Lender as a consequence of such limitation. Such additional amount shall be payable by the Borrower within five (5) Business Days following receipt by the Borrower from the Facility Agent of the relevant Lender's invoice accompanied by reasonable calculation and explanation of the additional amount in question.
SECTION 3.10. Cancellation of CIRR Agreements.
No Lender shall be entitled to cancel or terminate the CIRR Agreement to which it is a party without the prior written consent of the Borrower.
ARTICLE IV
CERTAIN LIBO RATE, EURO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate or EURO Rate Lending Unlawful.
If after the Effective Date the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other governmental authority having jurisdiction over such Lender asserts that it is unlawful, for such Lender to make, continue or maintain its portion of any part of the Loan bearing interest at a rate based on the LIBO Rate or, as the case may be, EURO Rate, the obligation of such Lender to make, continue or maintain its portion of the Loan bearing interest at a rate based on the LIBO Rate or, as the case may be, EURO Rate shall, upon notice thereof to the Borrower, the Facility Agent and each other Lender, forthwith be suspended until the circumstances causing such suspension no longer exist, provided that such Lender's obligation to make, continue and maintain its portion of the Loan hereunder shall be automatically converted into an obligation to make, continue and maintain its portion of the Loan bearing interest at a rate to be negotiated between such Lender and the Borrower that is the equivalent of the sum of the LIBO Rate or, as the case may be, EURO Rate for the relevant Interest Period plus the applicable Floating Rate Margin.
SECTION 4.2. Deposits Unavailable
If, on or after the date the Borrower elects the Floating Rate pursuant to Section 3.4.2 or if any Lender shall have entered into an Option B Interest Make-Up Agreement (an "Option B Lender"), the Facility Agent shall have determined that:
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(a)    Dollar or EUR (if an election is made for the Loan to be denominated in EUR pursuant to Section 2.4(e)) deposits in the relevant amount and for the relevant Interest Period are not available to each Reference Bank in its relevant market, or
(b)    by reason of circumstances affecting the Reference Banks' relevant markets, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate or, as the case may be, EURO Rate loans for the relevant Interest Period, or
(c)    the cost to Option B Lenders that in the aggregate hold more than 50% of the aggregate outstanding principal amount of the Loan then held by Option B Lenders, if any Lender shall have entered into an Option B Interest Make-Up Agreement, of obtaining matching deposits in the relevant interbank market for the relevant Interest Period would be in excess of the LIBO Rate, or as the case may be, EURO Rate (provided that no Option B Lender may exercise its rights under this Section 4.2(c) for amounts up to the difference between such Option B Lender's cost of obtaining matching deposits on the date such Option B Lender becomes a Lender hereunder less the LIBO Rate or, as the case may be, EURO Rate on such date),
then the Facility Agent shall give notice of such determination (hereinafter called a "Determination Notice") to the Borrower and each of the Lenders. The Borrower, the Lenders and the Facility Agent shall then negotiate in good faith in order to agree upon a mutually satisfactory interest rate and interest period (or interest periods) to be substituted for those which would otherwise have applied under this Agreement. If the Borrower, the Lenders and the Facility Agent are unable to agree upon an interest rate (or rates) and interest period (or interest periods) prior to the date occurring fifteen (15) Business Days after the giving of such Determination Notice, the Facility Agent shall (after consultation with the Lenders) set an interest rate and an interest period (or interest periods), in each case to take effect at the end of the Interest Period current at the date of the Determination Notice, which rate (or rates) shall be equal to the sum of the applicable Floating Rate Margin and the weighted average of the corresponding interest rates at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period on Thomson Reuters' pages KLIEMMM, GARBIC01 and FINA01 (or such other pages as may replace Thomson Reuters' pages KLIEMMM, GARBIC01 or FINA01 on Thomson Reuters' service) (or, in the case of clause (c) above, the lesser of (x) the respective cost to the Option B Lenders of funding the respective portions of the Loan held by such Option B Lenders and (y) such weighted average). The Facility Agent shall furnish a certificate to the Borrower as soon as reasonably practicable after the Facility Agent has given such Determination Notice setting forth such rate(s). In the event that the circumstances described in this Section 4.2 shall extend beyond the end of an interest period agreed or set pursuant hereto, the foregoing procedure shall be repeated as often as may be necessary.
SECTION 4.3. Increased Loan Costs, etc.
If after the Effective Date a change in any applicable treaty, law, regulation or regulatory requirement or in the interpretation thereof or in its application to the Borrower, or if compliance by any Lender with any applicable direction, request, requirement or guideline (whether or not
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having the force of law) of any governmental or other authority including, without limitation, any agency of the European Union or similar monetary or multinational authority insofar as it may be changed or imposed after the date hereof, shall:
(a)    subject any Lender to any taxes, levies, duties, charges, fees, deductions or withholdings of any nature with respect to its portion of the Loan or any part thereof imposed, levied, collected, withheld or assessed by any jurisdiction or any political subdivision or taxing authority thereof (other than (i) taxes as to which such Lender is indemnified under Section 4.6 and (ii) taxes excluded from the indemnity set forth in Section 4.6); or
(b)    change the basis of taxation to any Lender (other than a change in taxation on the overall net income of any Lender) of payments of principal or interest or any other payment due or to become due pursuant to this Agreement; or
(c)    impose, modify or deem applicable any reserve or capital adequacy requirements (other than the increased capital costs described in Section 4.5 and the reserve costs described in Section 4.7) or other banking or monetary controls or requirements which affect the manner in which a Lender shall allocate its capital resources to its obligations hereunder or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender (provided that such Lender shall, unless prohibited by law, allocate its capital resources to its obligations hereunder in a manner which is consistent with its present treatment of the allocation of its capital resources); or
(d)    impose on any Lender any other condition affecting its portion of the Loan or any part thereof,
and the result of any of the foregoing is either (i) to increase the cost to such Lender of making its portion of the Loan or maintaining its portion of the Loan or any part thereof, (ii) to reduce the amount of any payment received by such Lender or its effective return hereunder or on its capital or (iii) to cause such Lender to make any payment or to forego any return based on any amount received or receivable by such Lender hereunder, then and in any such case if such increase or reduction in the opinion of such Lender materially affects the interests of such Lender, (A) such Lender shall (through the Facility Agent) notify the Borrower of the occurrence of such event and use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Lending Office if the making of such a designation would avoid the effects of such law, regulation or regulatory requirement or any change therein or in the interpretation thereof and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (B) the Borrower shall forthwith upon such demand pay to the Facility Agent for the account of such Lender such amount as is necessary to compensate such Lender for such additional cost or such reduction and ancillary expenses, including taxes, incurred as a result of such adjustment unless such additional costs are attributable to a FATCA Deduction required to be made by a party to this Agreement or are otherwise excluded from the indemnity set forth in Section 4.6 or Section 11.4. 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,
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(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 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 organisation or in the relevant jurisdiction in which such Lender does business. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such increased costs or reductions and of such Lender's intention to claim compensation therefor; provided further that, if the circumstance giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such cost or reductions and of such Lender's intention to claim compensation therefor.
SECTION 4.4. Funding Losses.
SECTION 4.4.1. Indemnity.
In the event any Lender: (i) is required to liquidate or to re-deploy (at not less than the market rate) deposits or other funds acquired by such Lender to fund any portion of the principal amount of its portion of the Loan or (ii) exercises such Lender's right to irrevocably terminate (in whole or in part) the CIRR Guarantee after the Latest Date in accordance with Section 8.1 of the Terms and Conditions or, as the case may be in the case of an Option A Lender, Section 8.2 of the Terms and Conditions, in each case, as a result of:
(a)    if at the time interest is calculated at the Floating Rate on such Lender's portion of the Loan, any conversion or repayment or prepayment or acceleration of the principal amount of such Lender's portion of the Loan on a date other than the scheduled last day of an Interest Period or otherwise scheduled date for repayment or payment (in each case, including payments made in accordance with Section 3.1(b), but excluding any prepayment made following an election by the Borrower to effect a prepayment pursuant to Section 3.2(d), or any repayment pursuant to Section 9.1.12, by reason of a Non-Guarantor Related Change in Law);
(b)    if at the time interest is calculated at the Fixed Rate on such Lender's portion of the Loan, any repayment or prepayment or acceleration of the principal amount of such Lender's portion of the Loan, other than any repayment made on the date scheduled for such repayment (in each case, excluding any prepayment made following an election by the Borrower to effect a prepayment pursuant to Section 3.2(d), or any repayment pursuant to Section 9.1.12, by reason of a Non-Guarantor Related Change in Law);
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(c)    without prejudice to the rights of the Borrower to elect an option under Section 3.4.2(a), an election by the Borrower of the Floating Rate in accordance with Section 3.4.2(a) (where the Disbursement Date is a date that falls less than 65 days after the Floating Rate Election Notice was delivered by the Borrower) or Section 3.4.2(b);
(d)    a reduction or termination of the Commitments by the Borrower pursuant to Section 2.3 and to the extent that the Borrower has a liability under this Section pursuant to Section 2.3(b)(i);
(e)    the Loan not being made in accordance with the Loan Request therefor due to the fault of an Obligor or as a result of any of the conditions precedent set forth in Article V not being satisfied;
(f)    any prepayment of the Loan by the Borrower pursuant to Section 3.8;
(g)    where interest on the Loan is to be calculated at the Fixed Rate or where the Borrower has elected the KfW Fixed Rate in accordance with Section 3.3.1(b), the Loan not being made on or before the Commitment Termination Date; or
(h)    where Borrower has elected the KfW Fixed Rate in accordance with Section 3.3.1(b), the Disbursement Date of the Loan is not the same date as the anticipated Disbursement Date at the time the Borrower elected the KfW Fixed Rate (and which anticipated Disbursement Date was applied for the purpose of determining the KfW Fixed Rate),
(each, a "Funding Losses Event"), then, upon the written notice of such Lender to the Borrower (with a copy to the Facility Agent), the Borrower shall, within five (5) Business Days of its receipt of such notice and, where the KfW Fixed Rate applies, save as provided below:
a.    if at that time interest is calculated at the Floating Rate on such Lender's portion of the Loan, pay directly to the Facility Agent for the account of such Lender an amount (the "Floating Rate Indemnity Amount") equal to the amount, if any, by which:
(i)    interest (not including the relevant Floating Rate Margin) calculated at the Floating Rate which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event for the period from the date of receipt of any part of its share in the Loan to the last day of the applicable Interest Period,
exceeds:
(ii)    the amount which such Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Interest Period; or
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b.    if at that time interest is calculated at the Fixed Rate on such Lender's portion of the Loan, pay to the Facility Agent the sum of:
(A)    an amount equal to the amount, if any, by which:
(i)    interest calculated at the rate per annum equal to (a) the CIRR which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event minus (b) the administrative margin of 0.20%, for the period from the date of receipt of any part of its share of the Loan to the final scheduled date for the repayment of Loan in full pursuant to Section 3.1,
exceeds:
(ii)    the amount by which such Lender would be able to obtain by placing for such remaining period an equal amount to the amount received by it on deposit and receiving interest equal to the money market rate then applicable to Dollars on the Reuters page "ICAP1" or, as the case may be, EUR on the Reuters page "ICAPEURO" (the "Reinvestment Rate"),
such amount to be discounted to present value at the Reinvestment Rate or, where the KfW Fixed Rate applies in the case of sections 4.4.1(g) and (h), the cost to KfW (on behalf of each Option A Lender) and each Option B Lender of adjusting, renewing, terminating or otherwise altering the hedging arrangements entered into by KfW and each Option B Lender in connection with the settling and provision of the KfW Fixed Rate; plus
(B)    only if KfW (where such Lender is an Option A Lender) or the Lender (where such Lender is an Option B Lender) is funding itself at a floating rate, an amount equal to the Floating Rate Indemnity Amount (and assuming for the purpose of this calculation that the interest on the Loan is calculated at the Floating Rate and not the Fixed Rate).
Any amounts received by the Facility Agent under b.(A) above shall, unless otherwise advised by KfW, be for the account of, and shall be payable to, KfW on behalf of the Federal Republic of Germany; and any amounts received by the Facility Agent under b.(B) above in respect of a Lender's portion of the Loan shall be for the account of, and shall be payable to, KfW (where such Lender is an Option A Lender) or to that Lender (where such Lender is an Option B Lender).
If interest on the Loan is to be calculated at the Fixed Rate or the Borrower has elected the KfW Fixed Rate in accordance with Section 3.4.1(b), and the Borrower voluntarily cancels, terminates or partially reduces the Commitments in accordance with Section 2.3 or the amount of the Loan is less than the total Commitments as at the date of this Agreement, and such
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cancellation or reduction is due to the non-delivery or late delivery of the Purchased Vessel by the Builder due to of the bankruptcy or insolvency of the Builder then (1) no indemnity payments can be claimed by the Option A Lenders under b. above in these circumstances and (2) where the cancellation arises as a result of the late delivery of the Purchased Vessel by the Builder, the amounts that can be claimed by way of indemnity from the Borrower under this Section 4.4 in respect of the KfW Fixed Rate in these circumstances shall be limited to the aggregate of the costs actually incurred by KfW (on behalf of the Option A Lenders) and each Option B Lender in adjusting the hedging arrangements entered into by KfW and such Option B Lenders in connection with the KfW Fixed Rate to take account of the delayed delivery date.
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 after the Effective Date any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority increases the amount of capital required to be maintained by any Lender or any Person controlling such Lender, and the rate of return on its or such controlling Person's capital as a consequence of its Commitment or its portion of the Loan made by such Lender is reduced to a level below that which such Lender or such controlling Person would have achieved but for the occurrence of any such change in circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, the Borrower shall immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. Any such notice shall (i) describe in reasonable detail the capital adequacy requirements which have been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such lowered return, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such 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 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Lending Office if the making of such a designation would avoid such reduction in such rate of return and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender's intention to claim compensation therefor; provided further that, if the circumstance giving rise to such reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies
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the Borrower of the circumstance giving rise to such reductions and of such Lender's intention to claim compensation therefor.
SECTION 4.6. Taxes.
All payments by the Obligors of principal of, and interest on, the Loan and all other amounts payable under any Loan Document, including for the avoidance of doubt under any Fee Letter, 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 of such Lender and franchise taxes imposed in lieu of net income taxes or taxes on receipts, by the jurisdiction under the laws of which such Lender is organised or any political subdivision thereof or the jurisdiction of such Lender's Lending Office or any political subdivision thereof or any other jurisdiction unless such net income taxes are imposed solely as a result of the applicable Obligor's activities in such other jurisdiction, and (ii) any taxes imposed under FATCA (such non-excluded items being called "Covered Taxes"). In the event that any withholding or deduction from any payment to be made by any Obligor under any Loan Document is required in respect of any Covered Taxes pursuant to any applicable law, rule or regulation, then the relevant Obligor will:
(a)    pay directly to the relevant authority the full amount required to be so withheld or deducted;
(b)    promptly forward to the Facility Agent an official receipt or other documentation satisfactory to the Facility Agent evidencing such payment to such authority; and
(c)    pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
Moreover, if any Covered Taxes are directly asserted against the Facility Agent or any Lender with respect to any payment received or paid by the Facility Agent or such Lender hereunder, the Facility Agent or such Lender may pay such Covered Taxes and the Borrower will promptly pay such additional amounts (including any penalties, interest or expenses) as is necessary in order that the net amount received by such person after the payment of such Covered Taxes (including any Covered Taxes on such additional amount) shall equal the amount such person would have received had no such Covered Taxes been asserted.
Any Lender claiming any additional amounts payable pursuant to this Section agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
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If the Borrower or a relevant Obligor fails to pay any Covered Taxes when due to the appropriate taxing authority or fails to remit to the Facility Agent for the account of the respective Lenders the required receipts or other required documentary evidence, the Borrower shall indemnify the Lenders for any incremental withholding Covered Taxes, interest or penalties that may become payable by any Lender as a result of any such failure (so long as such amount did not become payable as a result of the failure of such Lender to provide timely notice to the Borrower of the assertion of a liability related to the payment of Covered Taxes). For purposes of this Section 4.6, a distribution hereunder by the Facility Agent or any Lender to or for the account of any Lender shall be deemed a payment by the Borrower.
If any Lender is entitled to any refund, credit, deduction or other reduction in tax by reason of any payment made by the Borrower or a relevant Obligor in respect of any Covered Tax under this Section 4.6 or by reason of any payment made by the Borrower or a relevant Obligor 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 or a relevant Obligor such amount (plus any interest received by such Lender in connection with such refund, credit, deduction or reduction) as is equal to the net after-tax value to such Lender of such part of such refund, credit, deduction or reduction as such Lender reasonably determines is allocable to such Covered Tax or such payment (less out-of-pocket expenses incurred by such Lender), provided that no Lender shall be obligated to disclose to the Obligors any information regarding its tax affairs or tax computations.
Each Lender (and each Participant) agrees with each Obligor and the Facility Agent that it will (i) (a) provide to the Facility Agent and each Obligor an appropriately executed copy of Internal Revenue Service ("IRS") Form W-9 (or any successor form) certifying the status of such Lender or such Participant as a US person, IRS Form W-8ECI (or any successor form) 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 IRS Form W-8BEN (or any successor form) claiming the benefits of a tax treaty (but only if the applicable treaty described in such form provides for a complete exemption from U.S. federal income tax withholding), or any successor form, on or prior to the date hereof (or, in the case of any Assignee Lender or Participant, on or prior to the date of the relevant assignment or participation), in each case attached to an IRS Form W-8IMY (or any successor form), if appropriate, (b) notify the Facility Agent and each Obligor if the certifications made on any form provided pursuant to this paragraph are no longer accurate and true in all material respects and (c) provide such other tax forms or other documents as shall be prescribed by applicable law, if any, or as otherwise reasonably requested, to demonstrate, to the extent applicable, the status of such Lender Party (or Participant) or that payments to such Lender Party (or Participant) hereunder are exempt from withholding under FATCA, and (ii) in all cases, provide such forms, certificates or other documents, as and when reasonably requested by any Obligor, necessary to claim any applicable exemption from, or reduction of, Covered Taxes, a FATCA Deduction or any payments made to or for benefit of such Lender Party or such Participant, provided that the Lender Party or Participant is legally able to deliver such forms, certificates or other documents. For any period with respect to which a Lender (or Assignee Lender or Participant) has failed to provide the Obligors with the foregoing forms (other than if such failure is due to a change in law occurring after the date on which a form originally was required to be provided (which, in the case of an
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Assignee Lender, would be the date on which the original assignor was required to provide such form) or if such form otherwise is not required hereunder) such Lender (or Assignee Lender or Participant) shall not be entitled to the benefits of this Section 4.6 with respect to Covered Taxes imposed by reason of such failure.
SECTION 4.7. Reserve Costs.
Without in any way limiting the Borrower's obligations under Section 4.3, the Borrower shall, on and after the date on which the Borrower elects the Floating Rate pursuant to Section 3.4.2, pay to the Facility Agent for the account of each Lender on the last day of each Interest Period, so long as the relevant Lending Office of such Lender is required to maintain reserves against "Eurocurrency liabilities" under Regulation D of the F.R.S. Board, upon notice from such Lender, an additional amount equal to the product of the following for the Loan for each day during such Interest Period:
(a)    the principal amount of the Loan outstanding on such day; and
(b)    the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on the Loan for such Interest Period as provided in this Agreement (less, if applicable, the applicable Floating Rate Margin) and the denominator of which is one minus any increase after the Effective Date in the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender minus (y) such numerator; and
(c)    1/360.
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 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to avoid the requirement of maintaining such reserves (including by designating a different Lending Office) if such efforts would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 4.8. Payments, Computations, etc.
(a)    Unless otherwise expressly provided in this Agreement or any other Loan Document, all payments by an Obligor in respect of amounts of principal, interest and fees or any other applicable amounts owing to the Lenders under any Loan Document shall be made by such Obligor to the Facility Agent for the account of the Lenders (or, in respect of (i) the Increase Tranche and amounts payable thereunder, the Increase Lenders and (ii) the Loan excluding the Increase Tranche and amounts payable thereunder, the Lenders in respect of that portion of the Loan) entitled to receive such payments and ratably in accordance with the respective
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amounts then due and payable to the Lenders. All such payments required to be made to the Facility Agent shall be made, without set-off, deduction or counterclaim, not later than 11:00 a.m., New York time, on the date due, in same day or immediately available funds through the New York Clearing House Interbank Payments System (or such other funds as may be customary for the settlement of international banking transactions in Dollars, or as the case may be, EUR), to such account as the Facility Agent shall specify from time to time by notice to the Obligors. Funds received after that time shall be deemed to have been received by the Lenders on the next succeeding Business Day.
(b)    
i.    Each Option A Lender hereby instructs the Facility Agent to remit all payments of interest made with respect to any portion of the Loan held by such Option A Lender to KfW (A) less (x) the applicable Fixed Rate Margin and (y) the CIRR administrative fee of 0.20% but plus (z) an agreed KfW margin, if interest on the portion of the Loan made by that Lender is then calculated at the Fixed Rate, or (B) less (x) the applicable Floating Rate Margin but plus (y) an agreed KfW margin, if interest on that portion of the Loan is then calculated at the Floating Rate.
ii.    Each Option B Lender hereby instructs the Facility Agent, with respect to any portion of the Loan held by such Option B Lender, to pay directly to such Option B Lender interest thereon at the Fixed Rate or the Floating Rate (whichever is applicable), on the basis that, if interest on such portion of the Loan is then calculated at the Fixed Rate, such Option B Lender will, where amounts are payable to KfW by that Option B Lender under the CIRR Agreement, account directly to KfW on behalf of the Federal Republic of Germany for any such amounts payable by that Lender under the CIRR Agreement to which such Lender is a party.
(c)    The Facility Agent shall promptly (but in any event on the same Business Day that the same are received or, as contemplated in clause (a) of this Section, deemed received) remit in same day funds to each Lender its share, if any, of such payments received by the Facility Agent for the account of such Lender without any set-off, deduction or counterclaim. All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days. Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall (except as otherwise required by clause (a) of the definition of the term "Interest Period") 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.
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SECTION 4.9. Replacement Lenders, etc.
If the Borrower or a relevant Obligor shall be required to make any payment to any Lender pursuant to Section 4.2(c), 4.3, 4.4, 4.5, 4.6 or 4.7, the Borrower shall be entitled at any time (so long as no Default and no Prepayment Event shall have occurred and be continuing) within 180 days after receipt of notice from such Lender of such required payment to (a) terminate such Lender's Commitment (whereupon the Percentage of each other Lender shall automatically be adjusted to an amount equal to such Lender's ratable share of the remaining Commitments), (b) prepay the affected portion of such Lender's Loan in full, together with accrued interest thereon through the date of such prepayment (provided that the Borrower shall not terminate any Lender's Commitment pursuant to clause (a) or prepay any such Lender pursuant to this clause (b) without replacing such Lender pursuant to the following clause (c) until a 30-day period shall have elapsed during which the Borrower and the Facility Agent shall have attempted in good faith to replace such Lender), and/or (c) replace such Lender with one or more financial institutions (I) reasonably acceptable to the Facility Agent, (II) meeting the criteria set out in Section 2.2 of the Terms and Conditions, (III) acceptable to Hermes and (IV) in the case of a replacement of an Option A Lender, reasonably acceptable to KfW; provided that (x) in the case of a single assignment, any such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or, in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement and (y) no Lender shall be obligated to make any such assignment pursuant to this Section 4.9 unless and until such Lender shall have received one or more payments from one or more Assignee Lenders and/or the Borrower in an aggregate amount at least equal to the portion of the Loan held by such Lender, together with all unpaid interest and fees thereon accrued to but excluding the date of such assignment (and all other amounts then owing to such Lender under this Agreement). Each Lender represents and warrants to each Obligor 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.
SECTION 4.10. Sharing of Payments
SECTION 4.10.1. Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount from the Borrower or an Obligor other than in accordance with Section 4.8 (Payments, Computations, etc.) (a "Recovered Amount") and applies that amount to a payment due under the Loan Documents then:
(a)    the Recovering Lender shall, within three (3) Business Days, notify details of the receipt or recovery to the Facility Agent;
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(b)    the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Lender would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with the said Section 4.8, without taking account of any taxes which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
(c)    the Recovering Lender shall, within three (3) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Lender as its share of any payment to be made, in accordance with any applicable provisions of this Agreement.
SECTION 4.10.2. Redistribution of payments
The Facility Agent shall treat the Sharing Payment as if it had been paid by the Borrower and distribute it between the Lenders (other than the Recovering Lender) (the "Sharing Lenders") in accordance with Section 4.8 of this Agreement towards the obligations of the Borrower to the Sharing Lenders.
SECTION 4.10.3. Recovering Lender's rights
On a distribution by the Facility Agent under Section 4.10.2 of a payment received by a Recovering Lender from the Borrower or relevant Obligor, solely as between the Borrower or relevant Obligor and the Recovering Lender, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by the Borrower or relevant Obligor.
SECTION 4.10.4. Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering Lender becomes repayable to the Borrower or relevant Obligor and is repaid by that Recovering Lender to the Borrower or relevant Obligor, then:
(a)    each Sharing Lender shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Lender an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Sharing Payment which that Recovering Lender is required to pay) (the "Redistributed Amount"); and
(b)    solely as between the Borrower or relevant Obligor and each relevant Sharing Lender, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by the Borrower or relevant Obligor.
SECTION 4.10.5. Exceptions
(a)    This Section 4.10 shall not apply to the extent that the Recovering Lender would not, after making any payment pursuant to this Section 4.10, have a valid and enforceable claim against the Borrower or relevant Obligor.
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(b)    A Recovering Lender is not obliged to share with any other Lender any amount which the Recovering Lender has received or recovered as a result of taking legal or arbitration proceedings, if:
i.    it notified the other Lender of the legal or arbitration proceedings; and
ii.    the other Lender had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
SECTION 4.11. Set-off
Upon the occurrence and during the continuance of an Event of Default or a Prepayment Event, each Lender shall have, to the extent permitted by applicable law, the right to appropriate and apply to the payment of the Obligations then due and owing to it any and all balances, credits, deposits, accounts or moneys of any Obligor 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 applicable Obligor and the Facility Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of set-off under applicable law or otherwise) which such Lender may have.
SECTION 4.12. Use of Proceeds
The Borrower shall apply the proceeds of the Loan in accordance with Section 2.4(c) and (d) and, in relation to the Disbursement Date, prior to such application, such proceeds shall be held in an account or accounts of the Facility Agent in accordance with the provisions of Section 2.4(c); without limiting the foregoing, no proceeds of the Loan will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or any "margin stock", as defined in F.R.S. Board Regulation U. If the proceeds of the Loan have not been paid either (A) to the Builder or its order in accordance with Section 2.4(d)(i) and to Hermes and the Borrower in accordance with Section 2.4(d)(ii) or (B) to the Facility Agent (directly or indirectly) in prepayment of the Loan under Sections 3.2(a) or 3.8 by 9:59 p.m. (London time) on the first Business Day after the Disbursement Date (where the Loan is denominated in EUR) or the second Business Day after the Disbursement Date (where the Loan is denominated in Dollars), such proceeds shall continue to be pledged by the Borrower upon receipt in accordance with Section 2.4(c) as collateral pursuant to the Pledge Agreement. On or prior to the date that is 15 days after the Disbursement Date, the Borrower shall notify the Facility Agent whether the proceeds of the Loan are to be returned to the Facility Agent as prepayment in accordance with Section 3.8 or to be held as cash collateral in the Pledged Account pursuant to the Pledge Agreement until the earlier of (A) disbursement in accordance with Section 2.4(d) or (B) prepayment of the Loan pursuant to Sections 3.2(a) or 9.2.
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SECTION 4.13. FATCA Deduction
(a)     Each party to the Agreement may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no party to the Agreement shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
(b)    Each party to the Agreement shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the other party to the Agreement to whom it is making the payment and, in addition, shall notify the Borrower and the Facility Agent, and the Facility Agent shall notify the other parties to the Agreement.
SECTION 4.14. FATCA Information.
(a)    Subject to paragraph (c) below, each party (other than the Borrower) shall, within ten (10) Business Days of a reasonable request by another party (other than the Borrower):
(i)    confirm to that other party whether it is:
(A)    a FATCA Exempt Party; or
(B)    not a FATCA Exempt Party;
(ii)    supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other party's compliance with FATCA;
(iii)    supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other party's compliance with any other law, regulation, or exchange of information regime.
(b)    If a party confirms to another party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.
(c)    Paragraph (a) above shall not oblige any Lender or the Facility Agent to do anything, and paragraph (a)(iii) above shall not oblige any other party to do anything, which would or might in its reasonable opinion constitute a breach of:
(i)    any law or regulation;
(ii)    any fiduciary duty; or
(iii)    any duty of confidentiality.
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(d)    If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such party shall be treated for the purposes of the Loan Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.
(e)     If the Borrower becomes a US Tax Obligor or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
(i)    where the Borrower is a US Tax Obligor and the relevant Lender is KfW IPEX, the date of this Agreement;
(ii)    where the Borrower is a US Tax Obligor on a date an assignment or transfer is made pursuant to Section 11.11.1 and the relevant Lender is an Assignee Lender that becomes a Lender in accordance with Section 11.11.1, the date on which such Assignee Lender becomes a Lender;
(iii)    where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
supply to the Facility Agent:
(A)    a withholding certificate on Form W-8 (or any successor form), Form W-9 (or any successor form) or any other relevant form; or
(B)    any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
(f)    The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.
(g)    If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower.
(h)    The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant
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to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.
SECTION 4.15. Resignation of the Facility Agent.
The Facility Agent shall resign (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent) if, either:
(a)    the Facility Agent fails to respond to a request under Section 4.14 and the Borrower or a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
(b)    the information supplied by the Facility Agent pursuant to Section 4.14 indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party; or
(c)    the Facility Agent notifies the Borrower and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party,
and (in each case) the Borrower or a Lender reasonably believes that a party to this Agreement will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and the Borrower or that Lender, by notice to the Facility Agent, requires it to resign.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Advance of the Loan.

The obligation of the Lenders to fund all or any portion of the Loan on the Disbursement Date shall be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in this Section 5.1. The Facility Agent shall advise the Lenders of the satisfaction of the conditions precedent set forth in this Section 5.1 prior to funding on the Disbursement Date.
SECTION 5.1.1. Resolutions, etc.
The Facility Agent shall have received from the Borrower:
(a)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Agreement and each other Loan Document to which it is respectively a party and as to the truth and completeness of the attached:
i.    resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Agreement and each other Loan Document to which it is respectively a party, and
ii.    its Organic Documents,
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and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the Borrower cancelling or amending such prior certificate; and
(b)    a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the Borrower.
SECTION 5.1.2. Opinions of Counsel.
The Facility Agent shall have received opinions, addressed to the Facility Agent and each Lender from:
(a)    Watson, Farley & Williams LLP, counsel to the Borrower, as to Liberian Law, covering the matters set forth in Exhibit B-2 hereto;
(b)    Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders, covering the matters set forth in Exhibit B-3 hereto;
(c)    Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders as to German law, an opinion addressed to the Facility Agent and the Lenders covering the matters set forth in Exhibit B-4 hereto;
(d)    Clifford Chance US LLP, United States tax counsel to the Facility Agent for the benefit of Lenders, covering the matters set forth in Exhibit B-5 hereto; and
(e)    if requested by a Lender at least 120 days prior to the expected Disbursement Date in order to comply with Article 194 of the Regulation (EU) No 575/2013 (CRR), a single legal opinion (for the benefit of all the Lenders notwithstanding that not all the Lenders have requested the same) on matters of German law related to the validity and enforceability of the Hermes Insurance Policy,
each such opinion to be updated to take into account all relevant and applicable Loan Documents at the time of issue thereof.
SECTION 5.1.3. Hermes Insurance Policy.
(a)    The Facility Agent or the Hermes Agent shall have received the Hermes Insurance Policy duly issued; and
(b)    Hermes shall not have, prior to the advance of the Loan, delivered to the Facility Agent or the Hermes Agent any notice that the Federal Republic of Germany has determined that the Loan (or any part of it) is excluded from cover under the Hermes Insurance Policy.
SECTION 5.1.4. Closing Fees, Expenses, etc.
The Facility Agent shall have received for its own account, or for the account of each Lender, as the case may be, all fees that the Borrower shall have agreed in writing to pay to the
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Facility Agent (whether for its own account or for the account of any of the Lenders) that are due and owing as of the date of such funding and all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent and the Hermes Fees) required to be paid by the Borrower pursuant to Section 11.3 or that the Borrower has otherwise agreed in writing to pay to the Facility Agent, in each case on or prior to the date of such funding.
SECTION 5.1.5. Compliance with Warranties, No Default, etc.
Both before and after giving effect to the funding of the Loan the following statements shall be true and correct:
(a)    the representations and warranties set forth in Article VI (excluding, however, those set forth in Section 6.10) shall be true and correct in all material respects except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, with the same effect as if then made; and
(b)    no Default and no Prepayment Event and no event which (with notice or lapse of time or both) would become a Prepayment Event shall have then occurred and be continuing.
SECTION 5.1.6. Loan Request.
The Facility Agent shall have received a Loan Request duly executed by the Borrower together with:
(a)    certified as true (by the Builder) copies of the reimbursement request and supporting documents received by the Builder from the Borrower pursuant to Article XVII.1(b) of the Construction Contract in relation to the incurred Buyer's Allowance;
(b)    a copy of the final invoice from the Builder showing the amount of the Contract Price (including the Buyer's Allowance) and the portion thereof payable to the Builder on the Delivery Date under the Construction Contract; and
(c)    appropriate evidence of all payments made by the Borrower to the Builder on or prior to the Disbursement Date under the Construction Contract in respect of the Contract Price (including, without limitation, the twenty per cent (20%) equity payment thereunder).
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations.
Where the Loan is denominated in Dollars, the Facility Agent shall have received a copy of each foreign exchange counterparty confirmation entered into by the Borrower in respect of the payment of the instalments of the Contract Price (other than that relating to the Buyer's Allowance).
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SECTION 5.1.8. Pledge Agreement.
The Pledge Agreement shall be duly executed by the parties thereto and delivered to the Facility Agent on or prior to the Disbursement Date.

ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Facility Agent to enter into this Agreement and to make the Loan hereunder, each of the Borrower represents and warrants to the Facility Agent and each Lender with respect to itself as set forth in this Article VI as of the Effective Date, Disbursement Date and on the Security Enhancement Guarantee Release Date (except as otherwise stated).
SECTION 6.1. Organisation, etc.
Each Obligor is a corporation or company validly organised and existing and in good standing under the laws of its jurisdiction of incorporation; each Obligor is duly qualified to do business and is in good standing as a foreign corporation or company 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 each Obligor 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 to which it is a party and to perform the Obligations.
SECTION 6.2. Due Authorisation, Non-Contravention, etc.

The execution, delivery and performance by each Obligor of this Agreement and each other Loan Document to which it is a party are within each Obligor's corporate powers, have been duly authorised by all necessary corporate action, and do not:
(a)    contravene that Obligor's Organic Documents;
(b)    contravene any law or governmental regulation of any Applicable Jurisdiction except as would not reasonably be expected to result in a Material Adverse Effect;
(c)    contravene any court decree or order binding on an Obligor or any of its property except as would not reasonably be expected to result in a Material Adverse Effect;
(d)    contravene any contractual restriction binding on an Obligor or any of its property except as would not reasonably be expected to result in a Material Adverse Effect; or
(e)    result in, or require the creation or imposition of, any Lien on any of an Obligor's properties except: (i) as would not reasonably be expected to result in a Material Adverse Effect or (ii) Liens created under the Loan Documents.
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SECTION 6.3. Government Approval, Regulation, etc.
No authorisation 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 any Obligor of this Agreement or any other Loan Document to which it is a party (except for authorisations or approvals not required to be obtained on or prior to the Disbursement Date or that have been obtained or actions not required to be taken on or prior to the Disbursement Date or that have been taken). Each Obligor holds all governmental licenses, permits and other approvals required to conduct its business as conducted by it on the Disbursement 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 Laws.
(a)    Each Obligor is in compliance with all applicable laws, rules, regulations and orders, except to the extent that the failure to so comply does not and would not reasonably be expected to have a Material Adverse Effect.
(b)    The Borrower has implemented and maintains in effect policies and procedures designed to procure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The Borrower and its Subsidiaries and, to the knowledge of the Borrower, its respective officers, employees, directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions, in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in an Obligor being designated as a Sanctioned Person. None of (i) the Borrower, any Subsidiary or to the knowledge of the Borrower or such Subsidiary any of their respective directors, officers or employees, or (ii) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.
(c)    Each Obligor is in compliance with all applicable Environmental Laws, except to the extent that the failure to so comply would not have a Material Adverse Effect.
SECTION 6.5. Validity, etc.
This Agreement constitutes the legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally or by general equitable principles.
SECTION 6.6. No Default, Event of Default or Prepayment Event.
No Default, Event of Default or Prepayment Event has occurred and is continuing.
SECTION 6.7. Litigation.
There is no action, suit, litigation, investigation or proceeding pending or, to the knowledge of the Borrower, threatened against the Obligors, that (i) except as set forth in filings
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made by the Borrower with the SEC in the Borrower’s reasonable opinion might reasonably be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries (taken as a whole) (collectively, "Material Litigation") or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation of the transactions contemplated hereby.
SECTION 6.8. The Purchased Vessel.
Immediately following the delivery of the Purchased Vessel to Silversea Cruise Holding Ltd. under the Construction Contract, the Purchased Vessel will be:
(a)    legally and beneficially owned by Silversea Cruise Holding Ltd. or one of Silversea Cruise Holding Ltd.'s or the Borrower’s wholly owned Subsidiaries,
(b)    registered in the name of Silversea Cruise Holding Ltd. or one of Silversea Cruise Holding Ltd.'s or the Borrower’s wholly owned Subsidiaries under the Bahamian or Maltese flag or such other flag as the parties may mutually agree,
(c)    classed as required by Section 7.1.4(b),
(d)    free of all recorded Liens, other than Liens permitted by Section 7.2.3,
(e)    insured against loss or damage in compliance with Section 7.1.5, and
(f)    exclusively operated by or chartered to Silversea Cruise Holding Ltd. or one of Silversea Cruise Holding Ltd.'s or the Borrower’s wholly owned Subsidiaries.
SECTION 6.9. 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 each Obligor other than Indebtedness preferred as a matter of law.
SECTION 6.10. Withholding, etc..
As of the Effective Date, no payment to be made by any Obligor under any Loan Document is subject to any withholding or like tax imposed by any Applicable Jurisdiction.
SECTION 6.11. No Filing, etc. Required.
No filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of any Applicable Jurisdiction to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Agreement or the other Loan Documents (except for filings, recordings, registrations or payments not required to be made on or prior to the Disbursement Date or that have been made).
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SECTION 6.12. No Immunity.
Each Obligor is subject to civil and commercial law with respect to the Obligations. Neither Obligor nor any of its properties or revenues is entitled to any right of immunity in any Applicable Jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to the Obligations (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted or exist).
SECTION 6.13. Investment Company Act.
Neither Obligor is required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
SECTION 6.14. Regulation U.
Neither Obligor is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of the Loan will be used for a purpose which violates, or would be inconsistent with, F.R.S. Board Regulation U. Terms for which meanings are provided in F.R.S. Board Regulation U or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
SECTION 6.15. Accuracy of Information.
(a)    The financial and other information (other than financial projections or other forward looking information) furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower and the Original Borrower by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Borrower, true and correct and contains no misstatement of a fact of a material nature. All financial projections, if any, that have been furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with this Agreement have been or will be prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the projections will be realised). All financial and other information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Borrower in good faith.
(b)    The financial and other information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Borrower, true and correct and contains no misstatement of a fact of a material nature. All financial and other
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information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Borrower in good faith.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants.
The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date (or, where applicable, from such time as may be stated in any applicable provision below) until all Commitments have terminated and all Obligations have been paid in full, the Obligors will perform the obligations applicable to it set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, Poseidon Principles etc.
The Borrower will furnish, or will cause to be furnished, to the Facility Agent (with sufficient copies for distribution to each Lender) the following financial statements, reports, notices and information:
(a)    as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, a copy of the Borrower’s report on Form 10-Q (or any successor form) as filed by the Borrower with the SEC for such Fiscal Quarter, containing unaudited consolidated financial statements of the Borrower for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
(b)    as soon as available and in any event within 120 days after the end of each Fiscal Year of a copy of the Borrower’s annual report on Form 10-K (or any successor form) as filed by the Borrower with the SEC for such Fiscal Year, containing audited consolidated financial statements of the Borrower for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLP or another firm of independent public accountants of similar standing;
(c)    together with each of the statements delivered pursuant to the foregoing clause (a) or (b), a certificate, executed by the chief financial officer, the treasurer or the corporate controller of the Borrower, showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year compliance with the covenants set forth in Section 7.2.4 (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
(d)    as soon as possible after the occurrence of a Default or Prepayment Event, a statement of the chief financial officer of the Borrower setting forth details of such
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Default or Prepayment Event (as the case may be) and the action which the Borrower has taken and proposes to take with respect thereto;
(e)    as soon as the Borrower becomes aware thereof, notice of any Material Litigation except to the extent that such Material Litigation is disclosed by the Borrower in filings with the SEC;
(f)    promptly after the sending or filing thereof, copies of all reports which the Borrower sends to all holders of each security issued by the Borrower, and all registration statements which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange;
(g)    such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its respective Subsidiaries as any Lender through the Facility Agent may from time to time reasonably request;
(h)    on or before the later of (i) 31 July and (ii) 30 days after its own receipt of a Statement of Compliance in each calendar year, supply, or procure the supply, to the Facility Agent (for distribution to Hermes and the Lenders) (in each case at the cost of the Borrower) of all information necessary in order for any Lender to comply with its obligations under the Poseidon Principles in respect of the preceding year, including, without limitation, all ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI (as collated and reported to the Purchased Vessel’s flag state using the verification report submitted to that flag state) and any Statement of Compliance, in each case relating to the Purchased Vessel for the preceding calendar year, provided always that such information shall be confidential information for the purposes of Section 11.15 and, accordingly, no Lender shall publicly disclose such information with the identity of the Purchased Vessel, the Borrower (or, if applicable, the Borrower’s wholly owned Subsidiary that then owns the Purchased Vessel) without the prior written consent of the Borrower (it being expressly agreed however that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the relevant Lender’s portfolio climate alignment);
(i)    during the Financial Covenant Waiver Period, as soon as available and in any event within respectively five (5), ten (10) and forty (40) days (or such other period as Hermes or the Lenders may require from time to time) after the end of each monthly, bi-monthly and quarterly period (save that the period in respect of the final quarter of each Fiscal Year shall be sixty (60) days) from the Amendment Two Effective Date, the information required by the Debt Deferral Extension Regular Monitoring Requirements (as such information requirements may be amended on the basis set out in the Debt Deferral Extension Regular Monitoring Requirements) (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
(j)    during the Financial Covenant Waiver Period, upon the request of the Hermes Agent (acting on the instructions of Hermes), the Borrower and the Lenders shall
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provide information in form and substance satisfactory to Hermes regarding arrangements in respect of Indebtedness for borrowed money of the Group then existing or any such Indebtedness to be incurred by or made available to (as the case may be) the Group pursuant to binding commitments (such information to be provided to Hermes in accordance with terms of the Hermes Agent’s request);
(k)    during the period from the Amendment Two Effective Date until the Covenant Modification Date, within five Business Days after the end of each month falling during such period, 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 immediately preceding month, compliance with the covenant set forth in Section 7.2.4(C); provided that if, during such period, the Borrower is not in compliance with the covenant set forth in Section 7.2.4(C) as of the last day of such month, the Borrower shall show compliance with such covenant as of the date such certificate is delivered;
(l)    within 15 Business Days of the end of each month throughout the Early Warning Monitoring Period that falls within the Financial Covenant Waiver Period, 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 month (i) the ratio of Adjusted Cash Balance as of the last day of the most recently completed month to the Monthly Outflow for the month most recently ended (and showing whether the Adjusted Cash Balance covers the Monthly outflow for at least the subsequent five-month period) and (ii) the Borrower’s Adjusted EBITDA after Interest for the two consecutive Last Reported Quarters (in each case in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
(m)    if the Borrower intends to make a Restricted Voluntary Prepayment, not less than ten Business Days prior to the anticipated making of a Restricted Voluntary Prepayment, the Borrower shall provide written notice to the Facility Agent of that Restricted Voluntary Prepayment (which notice shall set out in reasonable detail the terms of that Restricted Voluntary Prepayment);
(n)    during the Financial Covenant Waiver Period, as soon as the Borrower becomes aware thereof, notice (with a copy to the Hermes Agent and Hermes) of any matter that has, or may, result in a breach of Section 7.1.11; and
(o)    during the Financial Covenant Waiver Period, on one occasion during each calendar year, the environmental plan of the Borrower (and including the Group’s carbon emissions for the past two years (calculated according to methodologies defined by the IMO or any other public methodology specified by the Borrower)) as required to be published pursuant to the letter of the Borrower issued pursuant to Amendment Number Two,
provided that information required to be furnished to the Facility Agent under subsections (a), (b), (f) and (o) of this Section 7.1.1 shall be deemed furnished to the Facility Agent when
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available free of charge on the Borrower’s website at http://www.rclinvestor.com or the SEC’s website at http://www.sec.gov.
SECTION 7.1.2. Approvals and Other Consents.
Each Obligor will obtain (or cause to be obtained) all such governmental licenses, authorisations, consents, permits and approvals as may be required for that Obligor to perform its obligations under this Agreement and the other Loan Documents to which it is a party and the Borrower will obtain (or cause to be obtained) all such governmental licenses, authorisations, consents, permits and approvals as may be required for the operation of the Purchased Vessel in compliance with all applicable laws, except, in each case, to the extent that failure to obtain (or cause to be obtained) such governmental licenses, authorisations, consents, permits and approvals would not be expected to have a Material Adverse Effect.
SECTION 7.1.3. Compliance with Laws, etc.
Each Obligor will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, except (other than as described in clause (a) below) to the extent that the failure to so comply would not have a Material Adverse Effect, which compliance shall in any case include (but not be limited to):
(a)    in the case of each Obligor, the maintenance and preservation of its corporate existence (subject to the provisions of Section 7.2.5);
(b)    in the case of the Borrower, maintenance of its qualification as a foreign corporation in the State of Florida;
(c)    the payment, before the same become delinquent, of all taxes, assessments and governmental charges imposed upon it or upon its property, except to the extent being diligently contested in good faith by appropriate proceedings;
(d)    compliance with all applicable Environmental Laws;
(e)    compliance with all anti-money laundering laws and Anti-Corruption Laws applicable to each Obligor, including by not making or causing to be made any offer, gift or payment, consideration or benefit of any kind to anyone, either directly or indirectly, as an inducement or reward for the performance of any of the transactions contemplated by this Agreement to the extent the same would be in contravention of such applicable laws; and
(f)    the Borrower will maintain in effect policies and procedures designed to procure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
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SECTION 7.1.4. The Purchased Vessel.
The Borrower will:
(a)    from the Delivery Date, cause the Purchased Vessel to be exclusively operated by Silversea Cruise Holding Ltd. or chartered to the Borrower or one of Silversea Cruise Holding Ltd.'s or the Borrower’s wholly owned Subsidiaries, provided that Silversea Cruise Holding Ltd. or such Subsidiary may charter out the Purchased Vessel (i) to entities other than Silversea Cruise Holding Ltd. and it's wholly owned Subsidiaries or the Borrower or its wholly owned Subsidiaries and (ii) on a time charter with a stated duration not in excess of one year;
(b)    (in relation to the Borrower only) from the Delivery Date, cause the Purchased Vessel to be kept in such condition as will entitle her to classification by a classification society of recognised standing;
(c)    (in relation to the Borrower only) on the Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
(i)    evidence (in the form of a builder's certificate or bill of sale) as to the ownership of the Purchased Vessel by the Original Borrower or one of the Original Borrower's or the Borrower’s wholly owned Subsidiaries;
(ii)    evidence of no recorded Liens on the Purchased Vessel, other than Liens permitted pursuant to Section 7.2.3;
(iii)    a copy of the protocol of delivery and acceptance in respect of the Purchased Vessel signed by the Builder and the Original Borrower, certified as a true and complete copy by an Authorised Officer of the Borrower; and
(iv)    copies of the wire transfers for all payments by the Original Borrower to the Builder in respect of the amount of any change orders arising under the Construction Contract which the Original Borrower is required to pay to the Builder on the Delivery Date; and
(d)    within seven days after the Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
(v)    evidence of the class of the Purchased Vessel; and
(vi)    evidence as to all required insurance being in effect with respect to the Purchased Vessel.
SECTION 7.1.5. Insurance.
The Borrower will, from the Delivery Date, maintain or cause to be maintained with responsible insurance companies insurance with respect to the Purchased Vessel against such casualties, third-party liabilities and contingencies and in such amounts, in each case, as is
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customary for other businesses of similar size in the passenger cruise line industry (provided that in no event will the Borrower or any Subsidiary be required to obtain any business interruption, loss of hire or delay in delivery insurance) and will, upon request of the Facility Agent, furnish to the Facility Agent (with sufficient copies for distribution to each Lender) at reasonable intervals a certificate of a senior officer of the Borrower setting forth the nature and extent of all insurance maintained by the Borrower and certifying as to compliance with this Section.
SECTION 7.1.6. Books and Records.
The Borrower will keep books and records that accurately reflect all of its business affairs and transactions and permit the Facility Agent and each Lender or any of their respective representatives, at reasonable times and intervals and upon reasonable prior notice, to visit each of its offices, to discuss its financial matters with its officers and to examine any of its books or other corporate records.
SECTION 7.1.7. Hermes Insurance Policy/Federal Republic of Germany Requirement.
Each Obligor shall, on the reasonable request of the Hermes Agent or the Facility Agent, provide such other information as required under the Hermes Insurance Policy and/or the Terms and Conditions as necessary to enable the Hermes Agent or the Facility Agent to obtain the full support of Hermes and/or the government of the Federal Republic of Germany (as the case may be) pursuant to the Hermes Insurance Policy and/or the Terms and Conditions (as the case may be). The Borrower shall pay to the Hermes Agent or the Facility Agent the amount of all reasonable costs and expenses reasonably incurred by the Hermes Agent or the Facility Agent in connection with complying with a request by Hermes or the government of the Federal Republic of Germany (as the case may be) for any additional information necessary or desirable in connection with the Hermes Insurance Policy or the Terms and Conditions (as the case may be); provided that the Borrower is consulted before the Hermes Agent or KfW incurs any such cost or expense.
The Lenders shall not take any action that: (a) would have an adverse effect on the Hermes Insurance Policy; (b) would adversely impact the effectiveness of the Hermes Insurance Policy; or (c) would amend or otherwise modify the terms of the Hermes Insurance Policy in a manner that would impact any of the rights and obligations of the Obligors under this Agreement, other than in accordance with, or as contemplated by, the terms of this Agreement or as may be requested by the Borrower.
SECTION 7.1.8. Notice of written amendments to Construction Contract.
The Borrower shall furnish to the Facility Agent, as soon as practicable after such amendment or modification is entered into, notice of any written amendment to or written modification of the Construction Contract (other than upward or downward adjustments resulting from change orders effected as contemplated by the express terms of the Construction Contract) that (i) relates to the amount of the Contract Price, (ii) relates to the date on which the Purchased Vessel is to be delivered or (iii) (either by itself or when aggregated with earlier amendments or
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modifications, if any) results in a decrease in the dimensions or capacity of the Purchased Vessel in terms of the number of passengers and/or staterooms by more than five per cent (5%), in each case to the extent that any of the same do not require approval pursuant to Section 7.2.7.
SECTION 7.1.9. Further assurances in respect of the Framework.
During the Financial Covenant Waiver Period, the Borrower will from time to time at the request of the Facility Agent promptly enter into good faith negotiations in respect of (a) amending this Agreement to remove the carve-out of Section 7.2.4 from the provisions of Section 9.1.4 and/or (b) amending the financial covenants set forth in this Agreement, resetting the testing of such financial covenants and/or supplementing those financial covenants with additional financial covenants. A failure to reach an agreement under this paragraph following such good faith negotiations shall not constitute an Event of Default or a Prepayment Event.
SECTION 7.1.10. Equal treatment with Pari Passu Creditors.
The Borrower undertakes with the Facility Agent that it shall ensure (and shall procure that each other Group Member shall ensure) that the Lenders are treated equally in all respects with all other Pari Passu Creditors, and accordingly:
(a)    the Borrower shall enter into similar covenant amendment and replacement and mandatory prepayment arrangements to those contemplated by Amendment Number Two in respect of each ECA Financing (and for this purpose excluding any ECA Financings where the lenders under that ECA Financing do not provide their consent to such arrangements in circumstances where the arrangements contemplated in respect of that ECA Financing are on substantially the same basis as set out in this Agreement (as amended by Amendment Number Two) but including any financing which will, upon novation of the relevant facility agreement to the Borrower, become an ECA Financing) as soon as reasonably practicable after the Amendment Two Effective Date (with such amendments being on terms which shall not prejudice the rights of Hermes under this Agreement and the Builder under the Construction Contract);
(b)    the Borrower shall promptly upon written request, supply the Facility Agent and the Hermes Agent with information (in a form and substance satisfactory to the Facility Agent and Hermes Agent) regarding the status of the amendments to be entered into in accordance with paragraph (a) above;
(c)    to enable the Borrower to comply with the requirements under paragraph (d) below, prior to any Group Member entering into any Restricted Credit Enhancement with a Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.10(a)(ii)), the Borrower shall promptly notify the Facility Agent (and such notification shall include details of the new Lien or Group Member Guarantee and shall otherwise be in form and substance reasonably satisfactory to the Facility Agent); and

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(d)    at the same time as any relevant Restricted Credit Enhancement is provided to the relevant Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.10(a)(ii)), the Borrower, any relevant Group Member and the Lenders shall enter into such documentation as may be necessary in the reasonable opinion of the Facility Agent to ensure that the Lenders benefit from that Restricted Credit Enhancement on the same terms as the relevant Pari Passu Creditor(s) and, where that Restricted Credit Enhancement is a Lien or a Group Member Guarantee, to share in that Lien or Group Member Guarantee on a pari passu basis (and the Lenders agree to enter into such intercreditor documentation to reflect such pari passu ranking (in a form and substance satisfactory to the Lenders (acting reasonably)) as may be required in connection with such arrangements).
SECTION 7.1.11. Performance of shipbuilding contract obligations.
During the Financial Covenant Waiver Period, the Borrower shall (and shall procure that each of its Subsidiaries shall) comply with its contractual commitments under and in respect of (i) each shipbuilding contract in existence as at the Amendment Two Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into with the Builder and (ii) any option agreements or similar binding contractual commitments (whether in respect of a firm order of a vessel or otherwise) in existence at the Amendment Two Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into by the Borrower (or any of its Subsidiaries) and the Builder in connection with the potential entry into of a shipbuilding contract at a future point in time (it being agreed that such obligation shall not require the Borrower or the relevant Subsidiary (as applicable) to exercise any option or other contractual right thereunder), save that this Section 7.1.11 shall be subject to any amendment to any such shipbuilding contract, option agreement, contract or other related document if such amendment has, in consultation with the Hermes Agent (acting on the instructions of Hermes), been agreed between the Borrower or, as the case may be, relevant Subsidiary and the Builder.
SECTION 7.2. Negative Covenants.
The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date until all Commitments have terminated and all Obligations have been paid and performed in full, each Obligor will perform the obligations applicable to it set forth in this Section 7.2.
SECTION 7.2.1. Business Activities.
The Borrower will not, and will not permit any of its Subsidiaries to, engage in any principal business activity other than those engaged in by the Borrower and its Subsidiaries on the date hereof and other business activities reasonably related, ancillary or complementary thereto or that are reasonable extensions thereof.
SECTION 7.2.2. Indebtedness.
Until the occurrence of the Security Enhancement Guarantee Release Date (whereupon Section 7.2.2 of Exhibit P shall apply in accordance with Section 7.3), the Borrower will not
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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)    the obligations of the Original Borrower or its Subsidiaries in connection with those certain Bareboat Charterparties with respect to (i) the vessel SILVER EXPLORER dated July 22, 2011 between Silversea Cruises Ltd. and Hammonia Adventure and Cruise Shipping Company Ltd. and (ii) the vessel SILVER WHISPER dated March 15, 2012 between Whisper S.p.A. and various lessors, and the replacement, extension, renewal or amendment of each of the foregoing without increase in the amount or change in any direct or contingent obligor of such obligations;
(b)    Indebtedness arising pursuant to that certain Bareboat Charterparty dated May 17, 2018 by and between Hai Xing 1702 Limited and Silversea New Build Eight Ltd., as such agreement may be amended from time to time;
(c)    Indebtedness arising pursuant to a $300,000,000 facility agreement dated 7 June 2019 between, amongst others, the Original Borrower as borrower, the Borrower as guarantor and Nordea Bank ABP, New York branch as administrative agent;
(d)    Indebtedness secured by Liens of the type described in Section 7.2.3;
(e)    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower;
(f)    Indebtedness incurred to finance, refinance or refund the cost (including the cost of construction) of assets acquired after the Effective Date;
(g)    Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted to be secured under Section 7.2.3(f), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; and
(h)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes.
SECTION 7.2.3. Liens.
Until the occurrence of the Security Enhancement Guarantee Release Date (whereupon Section 7.2.2 of Exhibit P shall apply in accordance with Section 7.3), 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:
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(a)    Liens securing the $620 million in principal amount of 7.25% senior secured notes due 2025 issued by Silversea Cruise Finance Ltd. pursuant that that Indenture dated as of January 30, 2017;
(b)    Liens on the vessels SILVER WHISPER and SILVER EXPLORER existing as of the Effective Date and securing the Existing Silversea Leases (and any Lien on such vessels securing any refinancing of the Existing Silversea Leases, so long as such Vessel was subject to a Lien securing the Indebtedness being refinanced immediately prior to such refinancing);
(c)    Liens on the Vessel with Hull 6280 currently being built at Fincantieri S.p.A. and arising pursuant to that certain Bareboat Charterparty dated May 17, 2018 by and between Hai Xing 1702 Limited and Silversea New Build Eight Ltd., as such agreement may be amended from time to time (and any Lien on such vessel securing any refinancing of such bareboat charterparty);
(d)    Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Borrower after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Vessel, owns a Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
(e)    the Construction Mortgage but only to the extent that the same is discharged on the Delivery Date;
(f)    in addition to other Liens permitted under this Section 7.2.3, Liens securing Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted under Section 7.2.2(g), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such indebtedness, as applicable) (i) 10.0% of the total assets of the Borrower and its Subsidiaries (the "Lien Basket Amount") taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; provided, however that, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody's and S&P, the Lien Basket Amount shall be the greater of (x) 5.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter and (y) $735,000,000;
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(g)    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;
(h)    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;
(i)    Liens securing Government-related Obligations;
(j)    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;
(k)    Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue by more than 60 days or being diligently contested in good faith by appropriate proceedings;
(l)    Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance or other forms of governmental insurance or benefits;
(m)    Liens for current crew's wages and salvage;
(n)    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;
(o)    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 (l), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;
(p)    normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers' liens, rights of set-off or similar rights in favour of banks or other depository institutions;
(q)    Liens in respect of rights of set-off, recoupment and holdback in favour of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business;
(r)    Liens on cash or Cash Equivalents or marketable securities securing:
(i)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; or
(ii)    letters of credit that support such obligations;
(s)    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
(t)    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any of its Subsidiaries; and
(u)    licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries,
provided, however, that from the Amendment Two Effective Date until the Security Enhancement Guarantee Release Date, no Group Member shall be entitled to grant any Lien of the type referred to in paragraphs (d) to (g) over any ECA Financed Vessel.
SECTION 7.2.4. Financial Condition.
The Borrower will not permit:
(a)    Net Debt to Capitalisation Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1.
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(b)    Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter.
In addition, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody's and S&P, the Borrower will not permit Stockholders' Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single accounting period, but in any event excluding any Fiscal Quarters for which the Borrower and its Subsidiaries have a consolidated net loss).
SECTION 7.2.4(A). Most favored lender with respect to Financial Covenants. During the Financial Covenant Waiver Period, if any Group Member agrees, in respect of any of its Indebtedness for borrowed money, to any new, modified or substitute financial covenants of the type or similar to the financial covenants set out in Section 7.2.4 above then (a) the Borrower shall notify the Facility Agent in writing within 5 Business Days of such new, modified or substitute financial covenants being agreed with the relevant creditor(s) and (b) if required by the Lenders, the Borrower and the Lenders shall, as soon as practicable thereafter, enter into an amendment to this Agreement to incorporate the new, modified or substitute financial covenants.
SECTION 7.2.4(B). Notification of change to financial covenants.     During the Financial Covenant Waiver Period, if other than as notified in writing by the Borrower to the Facility Agent prior to the date of Amendment Number Two, at any time during the Financial Covenant Waiver Period the last day of a financial covenant waiver period under any of the agreements in respect of any of the Borrower’s other Indebtedness shall be amended such that it falls prior to December 31, 2022, the Borrower shall notify the Facility Agent.
SECTION 7.2.4(C). Minimum liquidity.     The Borrower will not allow the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP to be less than the Adjustable Amount as of (a) the last day of any calendar month from the Amendment Two Effective Date until the Covenant Modification Date, or (b) if the Borrower is not in compliance with the requirements of this Section 7.2.4(C) as of the last day of any calendar month during the Financial Covenant Waiver Period (or, if earlier, prior to the Covenant Modification Date), the date that the certificate required by Section 7.1.1(k) with respect to such month is delivered to the Facility Agent (it being understood that the Borrower shall not be required to comply with this Section 7.2.4(C) at any time on or after the Covenant Modification Date).
SECTION 7.2.5. Consolidation, Merger, etc.
The Borrower will not permit, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a)    any such Subsidiary may (i) liquidate or dissolve voluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any
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Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 7.2.6; and
(b)    so long as no Event of Default or Prepayment Event 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:
(A)    the surviving corporation shall have assumed in a writing, delivered to the Facility Agent, all of the Borrower's obligations hereunder and under the other Loan Documents to which the Borrower is a party;
(B)    the surviving corporation shall, promptly upon the request of the Facility Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Facility Agent or any Lender in order for the Facility Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary "know your customer" or other similar checks under all applicable laws and regulations; and
(C)    as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a "Protesting Lender") shall so notify the Borrower and the Facility Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Facility Agent and such Protesting Lender that the Commitments of such Protesting
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Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Loan owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
SECTION 7.2.6. Asset Dispositions, etc.
Subject to Section 7.2.8, the Borrower will not permit, and will not permit any of its Subsidiaries to, sell, transfer, contribute or otherwise convey, or grant options, warrants or other rights with respect to all or substantially all of the assets of (a) the Borrower or (b) the Subsidiaries of the Borrower, taken as a whole except sales of assets between or among the Borrower and Subsidiaries of the Borrower.
SECTION 7.2.7. Construction Contract
The Borrower shall procure that no amendments or modifications are made to the Construction Contract if such amendment or modification results in (i) a change of type of the Purchased Vessel or (ii) (either by itself or when aggregated with earlier amendments or modifications, if any) a decrease in the capacity of the Purchased Vessel in terms of the number of passengers and/or staterooms by more than five per cent. (5%) or (iii) the Purchased Vessel being unable to comply with applicable laws (including Environmental Laws) if, in the reasonable opinion of the Hermes Agent, such inability has or could reasonably be expected to have a Material Adverse Effect, without, in any such case, the consent of the Hermes Agent.
SECTION 7.2.8. Additional Undertakings
From the effectiveness of Amendment Number One, and notwithstanding anything to the contrary set out in this Agreement or any other Loan Document:
(a)    First Priority Guarantee Matters. Until the occurrence of a First Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the First Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the First Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
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(iii)    the First Priority Guarantor will not incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with any Other Guarantees;
(iv)    neither Celebrity Cruises Holdings Inc. nor Celebrity Cruises Inc will incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with the Secured Note Indebtedness or any Permitted Refinancing thereof; and
(v)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any First Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any First Priority Assets, other than:
(A)    to any other entity that is a First Priority Guarantor;
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of First Priority Assets made after the effectiveness of Amendment Number One (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(x)    $250,000,000 plus
(y)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) First Priority Assets or other assets owned by another First Priority Guarantor immediately prior to acquisition) acquired by any First Priority Guarantor after the effectiveness of Amendment Number One; or
(C)    if the net proceeds therefrom are applied in accordance with Section 4.09(b)(i) or 4.09(b)(iii) of the Secured Note Indenture, to the extent applicable at such time; provided, however, that if, within 450 days of such Disposition, any net proceeds of such Disposition have not been utilized in accordance with such provisions and are retained by the Borrower or any Subsidiary after such application (such retained net proceeds, "Excess Proceeds"), then:
(1)    if not already held by a First Priority Guarantor, such Excess Proceeds shall be promptly transferred to a First Priority
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Guarantor to be (x) retained in an account and on the balance sheet of that First Priority Guarantor and (y) used solely (i) for capital expenditures for the benefit of the remaining First Priority Assets or for the purposes of any asset purchase by that First Priority Guarantor or (ii) to make an offer to each ECA Guarantor in accordance with the following sub-clause (2); or
(2)    where the Borrower has elected to utilize the Excess Proceeds in the manner referred to in (ii) above, the Borrower shall make a written offer contemporaneously to each ECA Guarantor to apply such Excess Proceeds as a pro rata prepayment of the Loan and the Indebtedness under each other ECA Financing that is pari passu in right of payment to the Obligations. If any ECA Guarantor provides written notice to the Borrower within 90 days of such offer accepting such offer, the Borrower shall prepay the relevant Indebtedness notified to it within 10 Business Days (or such longer period as may be agreed with the lenders under each relevant ECA Financing being prepaid) of the date of receipt of such notice. If any ECA Guarantor fails to accept such offer within the said 90 days referred to above, then the pro rata portion of such Excess Proceeds that would have been applied to prepay the ECA Financings with respect to such ECA Guarantor if such offer was accepted shall be retained and applied in accordance with the foregoing sub-clause (1)(i).
(b)    Second Priority Guarantee Matters. Until the occurrence of a Second Priority Release Event:
(i)    the Borrower will not, and will not permit any of its Subsidiaries to, form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Second Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
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(ii)    no Second Priority Guarantor will form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary shall not, Dispose of any Second Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Second Priority Assets, other than:
(A)    to any other entity that is a Second Priority Guarantor; or
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Second Priority Assets made after the effectiveness of Amendment Number One (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A)) is less than the sum of:
(x)    $250,000,000 plus
(y)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Second Priority Assets or other assets owned by another Second Priority Guarantor immediately prior to acquisition) acquired by any Second Priority Guarantor after the effectiveness of Amendment Number One.
(c)    Third Priority Guarantee Matters. Until the occurrence of a Third Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the Third Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the Third Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any Third Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Third Priority Assets, other than:
(A)    to any other entity that is a Third Priority Guarantor;
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(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Third Priority Assets made after the effectiveness of Amendment Number One (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(x)    $250,000,000 plus
(y)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Third Priority Assets or other assets owned by another Third Priority Guarantor immediately prior to acquisition) acquired by any Third Priority Guarantor after the effectiveness of Amendment Number One; or
(C)    if the net proceeds therefrom are applied in accordance with those provisions of the Unsecured Note Indenture and/or the definitive documentation governing the DDTL Indebtedness to the extent applicable at the time which allow the Borrower to make an offer to prepay and/or repay the debt evidenced by the Unsecured Note Indenture and/or DDTL Indebtedness, as applicable; provided that, if any such net proceeds are retained by the Borrower or any Subsidiary after such application, the Borrower shall promptly repay or redeem all or any portion of any Indebtedness that is pari passu or senior in right of payment to the Obligations and for which a Third Priority Guarantor is a guarantor, in each case, subject to the terms of the documentation governing such Indebtedness (including the DDTL Indebtedness, the Unsecured Note Indebtedness, any Bank Indebtedness, any Credit Card Obligations, the Loan and any other Indebtedness under an ECA Financing); provided, further, that any repayment of Indebtedness under any revolving credit agreement pursuant to this paragraph shall be accompanied by a corresponding permanent reduction in the related revolving credit commitments.
(d)    New Subsidiary Guarantor Matters. In the event the Borrower or any of its Subsidiaries acquires an ECA Financed Vessel:
(i)    the Borrower will, within 15 Business Days of the purchase of the relevant ECA Financed Vessel, cause the applicable New Subsidiary Guarantor
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to provide (A) an Additional Guarantee, together with each equivalent Other Guarantee required to be provided under the terms of the other ECA Financings (as amended from time to time) and (B) all documents and information required by the Lenders in order to satisfy any applicable "know your customer" checks and any other reasonable condition precedent requirements of the Lenders (excluding, for the avoidance of doubt, legal opinions); provided that, in each case, if such New Subsidiary Guarantor is party to a Senior Guarantee at such time, the Facility Agent shall have contemporaneously entered into a New Subsidiary Guarantor Subordination Agreement; and
(ii)    until the occurrence of a Second Priority Release Event and a Third Priority Release Event:
(A)    the Borrower will not permit the applicable New Subsidiary Guarantor to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness) other than the applicable Additional Guarantee, any Other Guarantee and any Senior Guarantee;
(B)    the Borrower will not permit the Principal Subsidiary that acquires the relevant ECA Financed Vessel to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness);
(C)    notwithstanding any other provision of this Agreement, the Borrower will not, and shall procure that no other Subsidiary shall, Dispose of (whether to a Group Member or otherwise) the relevant ECA Financed Vessel (or any equity interests in a Subsidiary that owns, directly or indirectly, such ECA Financed Vessel); provided that (1) such ECA Financed Vessel may be exclusively operated by or chartered to the Borrower or one of the Borrower's wholly owned Subsidiaries and (2) the Borrower or such Subsidiary may charter out such ECA Financed Vessel (x) to entities other than the Borrower and the Borrower's wholly owned Subsidiaries and (y) on a time charter with a stated duration not in excess of one year; and
(D)    notwithstanding the provisions of Sections 7.2.2 and 7.2.3, the Borrower will not, and will not permit any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon the relevant ECA Financed Vessel, other than Liens permitted under Section 7.2.3 that do not secure Indebtedness for borrowed money.
(e)    Further Assurances. At the Borrower's reasonable request, the Facility Agent shall execute (i) any Additional Subordination Agreement or any Subordination
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Agreement, in substantially the form attached hereto as Exhibit L or Exhibit M with such changes, or otherwise in form and substance, reasonably satisfactory to the Facility Agent (acting upon the instructions of the Required Lenders) to ensure the required priority of the Second Priority Guarantee and the Third Priority Guarantee and (ii) any New Subsidiary Guarantor Subordination Agreement contemporaneously with the execution of any Senior Guarantee by a New Subsidiary Guarantor if such New Subsidiary Guarantor has granted an Additional Guarantee at such time.
(f)    Amount of Indebtedness. The Borrower shall ensure that:
(i)    the maximum aggregate principal amount of Bank Indebtedness (or any Permitted Refinancing thereof) guaranteed by the Second Priority Guarantors shall not exceed, in the aggregate, $5,300,000,000 (or its equivalent in any other currency) until the occurrence of a First Priority Release Event, a Second Priority Release Event, and a Third Priority Release Event;
(ii)    the maximum aggregate principal amount of Unsecured Note Indebtedness and DDTL Indebtedness (or any Permitted Refinancing of either of them), in each case, guaranteed by the Third Priority Guarantor shall not exceed, in the aggregate, $1,700,000,000 (or its equivalent in any other currency) until the occurrence of a Third Priority Release Event;
(iii)    until the occurrence of a Second Priority Release Event, none of the Second Priority Guarantors will grant any guarantee that is pari passu with or senior to its obligations under the Second Priority Guarantee, except in connection with (A) any Bank Indebtedness or any Permitted Refinancing thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that currently provided by that Second Priority Guarantor in connection with the relevant Indebtedness; and
(iv)    until the occurrence of a Third Priority Release Event, the Third Priority Guarantor will not grant any guarantee that is pari passu with or senior to its obligations under the Third Priority Guarantee, except in connection with (A) any Bank Indebtedness, Unsecured Note Indebtedness, DDTL Indebtedness or any Permitted Refinancing of any thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that currently provided by the Third Priority Guarantor in connection with the relevant Indebtedness.
(g)    Release of Guarantees. The Borrower agrees to give the Facility Agent written notice of the occurrence of any First Priority Release Event, Second Priority Release Event or Third Priority Release Event. The Facility Agent agrees, subject to the proviso (2) below, that:
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(i)    the First Priority Guarantee shall be automatically released upon the occurrence of a First Priority Release Event;
(ii)    the Second Priority Guarantee shall be automatically released upon the occurrence of a Second Priority Release Event;
(iii)    the Third Priority Guarantee shall be automatically released upon the occurrence of a Third Priority Release Event; and
(iv)    each Additional Guarantee shall be automatically released upon the occurrence of both a Second Priority Release Event and a Third Priority Release Event,
provided (1) in each case, and subject to proviso (2) below, that upon the Borrower's request, the Facility Agent shall promptly confirm in writing the release of the applicable Guarantee following the occurrence of the relevant release event and (2) where the Borrower is of the opinion that it would, if the Security Enhancement Guarantee Release Date was to occur, be in breach of the provisions of Section 7.2.2 as set out in Exhibit P (and which would otherwise come into effect on that Security Enhancement Guarantee Release Date) on the Security Enhancement Guarantee Release Date, the Borrower shall be entitled, by serving written notice on the Facility Agent and the Hermes Agent, to request that the Security Enhancement Security Enhancement Guarantee Release Date be postponed until such time as the Borrower is satisfied that it will be able to comply with the provisions of the said Section 7.2.2. Where the Borrower issues a notice pursuant to this proviso (2) it agrees that it shall use all reasonable endeavors and take all appropriate action as may be practicable at such time to enable it to comply with the said Section 7.2.2 as soon as practicable following the date that the Security Enhancement Guarantee Release Date would have occurred but for this proviso (2) so that the Security Enhancement Guarantee Release Date can then occur and, as soon as it is satisfied that it will be able to comply with the said Section 7.2.2, it will promptly serve a further written notice on the  Facility Agent and the Hermes Agent. Upon receipt of this further notice, the provisions of this paragraph (g) shall once again apply and the Facility Agent shall then take the action required of it to enable the Security Enhancement Guarantee Release Date to occur.
SECTION 7.2.9. Guarantor's Procurement Undertaking. Where any of the covenants set out in this Agreement require or purport to require performance by a Security Enhancement Guarantor or any Subsidiary of the Borrower, the Borrower shall procure the performance of that obligation by such Security Enhancement Guarantor or Subsidiary.
SECTION 7.2.10. Framework Lien and Guarantee Restriction
From the Amendment Two Effective Date until the Security Enhancement Guarantee Release Date, and without prejudice to Section 7.2.3, the Borrower shall not (and shall procure that each other Group Member shall not, save in respect of a Restricted Credit Enhancement of
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the type referred to in Section 7.1.10(d) (and in respect of which the Lenders therefore receive the benefit)):
a.    grant any Restricted Credit Enhancement in respect of any Indebtedness for borrowed money, provided that:
(i)     subject to the limitations set out in paragraph (b) below, this paragraph (a) shall not prohibit any Group Member from providing any Lien or Group Member Guarantee in connection with Indebtedness incurred after the Amendment Two Effective Date (provided that such Lien and/or Group Member Guarantee is issued at the same time, and in connection with, the initial incurrence of that Indebtedness (and is therefore not by way of additional credit support));
(ii)    in connection with a Permitted Refinancing of any Indebtedness, the relevant Group Member shall be entitled to provide the creditors under that Permitted Refinancing with Liens and/or Group Member Guarantees (as applicable) which:
(A)    in the case where the existing Indebtedness being refinanced was previously supported by Liens, the Liens and/or the Group Member Guarantees securing or supporting the Permitted Refinancing (as applicable) are over some or all of the same assets and:
(1)     with respect to any Liens, are with the same or lower priority as the Liens in respect of such assets that secured the Indebtedness being refinanced; and
(2)     with respect to any Group Member Guarantees, are Group Member Guarantees provided by a Group Member that owns (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that were previously secured pursuant to the Liens referred to in the first sentence of this paragraph (A); and
(B)    in the case where the existing Indebtedness being refinanced was previously supported by any Group Member Guarantee, the Group Member Guarantee(s) supporting such Permitted Refinancing are:
(1)    guarantees of obligations in an amount no greater than the guarantees granted in connection with the original Indebtedness being refinanced;
(2)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing is the same entity providing the Group
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Member Guarantees that are being replaced, provided by entities owning (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that it owned when the previous Group Member Guarantee was provided;
(3)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing differs from the entity providing the Group Member Guarantees being replaced, provided by entities that directly or indirectly own Vessels with an aggregate book value no greater than the Vessels that were owned (directly or indirectly) by the previous provider of the relevant Group Member Guarantee(s) that supported the existing Indebtedness; and
(4)    the same or lower priority as the original Group Member Guarantee(s) and are issued by either the same entities or from shareholders of those entities,
this paragraph (a) shall not prohibit any Group Member from providing or maintaining any Lien in accordance with the provisions of Section 7.2.3(h) through to (u) inclusive; provided, however, that the proviso at the end of Section 7.2.3(h) shall apply with respect to Liens granted pursuant that provision; and
b.    incur any new Indebtedness (including Indebtedness of the type referred to in paragraph 7.2.10(a)(i) above but excluding any Permitted Refinancing Indebtedness in connection with paragraph 7.2.10(a)(ii) above) which is secured by a Lien or is supported by a Group Member Guarantee and which, when taken with all other Indebtedness incurred by the Group since the Amendment Two Effective Date and which is also secured by a Lien or supported by a Group Member Guarantee, is greater than $1,300,000,000 (but deducting from this amount for this purpose, (i) the amount of any additional Indebtedness incurred by the Borrower in connection with the drawing of the DDTL Indebtedness (whether pursuant to the accordion option or otherwise) or (ii) any Indebtedness borrowed in lieu of the drawing of the DDTL Indebtedness in the foregoing clause) or its equivalent in any other currency, and provided that no Group Member shall, as contemplated by the proviso to Section 7.2.3, from the Amendment Two Effective Date until the Security Enhancement Guarantee Release Date (whereupon the relevant provisions of Exhibit P shall apply) be permitted to grant any Lien over an ECA Financed Vessel as security for any Indebtedness permitted to be incurred under this Agreement after the Amendment Two Effective Date.
SECTION 7.3. Covenant Replacement
With effect on and from the Security Enhancement Guarantee Release Date, it is agreed that Sections 7.2.2 and 7.2.3 shall be deleted in their entirety and replaced with the covenants and
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other provisions set out in Exhibit P, which shall become part of this Agreement and effective and binding on all parties.
SECTION 7.4. Limitation in respect of Certain Representations, Warranties and Covenants.
The representations and warranties and covenants given in Section 6.4(b) and 7.1.3(f) respectively shall only be given, and be applicable to, a Lender incorporated in the Federal Republic of Germany, or any other Lender who notifies the Facility Agent that this Section 7.3 applies to them, insofar as the giving of and compliance with such representations and warranties do not result in a violation of or conflict with section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section 4 paragraph 1 no.3 foreign trade law (AWG) (Außenwirtschaftsgesetz)), any provision of Council Regulation (EC) 2271/1996 in conjunction with (EU) 2018/1100 or any similar applicable anti-boycott law or regulation.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or occurrences described in this Section 8.1 shall constitute an "Event of Default".
SECTION 8.1.1. Non-Payment of Obligations.
The Borrower shall default in the payment when due of any amount payable by it under the Loan Documents in the manner required under the Loan Documents unless such failure is solely as a result of either (a) administrative or technical error or (b) a Disruption Event, and, in either case, payment is made within 3 Business Days of its due date.
SECTION 8.1.2. Breach of Warranty.
Any representation or warranty of an Obligor made or deemed to be made hereunder (including any certificates delivered pursuant to Article V) or under any other Loan Document is or shall be incorrect in any material respect when made.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
An Obligor shall default in the due performance and observance of any other agreement contained herein (including, from the Security Enhancement Guarantee Release Date, Exhibit P) or in any other Loan Document (other than the covenants set forth in Section 7.1.1(h), Section 7.1.1(i), Section 7.1.1(l), Section 7.1.1(m), Section 7.1.1(n), Section 7.1.9, Section 7.1.11, Section 7.2.4 (but excluding Sections 7.2.4(A) and 7.2.4(B) (a breach of which shall be regulated in accordance with Section 9.1.13(d)) and also excluding Section 7.2.4(C), a breach of which shall, subject to the cure periods set out in this Section 8.1.3, result in an Event of Default and the obligations referred to in Section 8.1.1) and such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower or relevant
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Obligor is actively seeking to remedy the same during such period, such default shall continue unremedied for at least 35 days after such notice to the Borrower).
SECTION 8.1.4. Default on Other Indebtedness.
(a) An Obligor or any of the Principal Subsidiaries shall fail to pay any Indebtedness that is outstanding in a principal amount of at least $100,000,000 (or the equivalent in other currencies) in the aggregate (but excluding Indebtedness hereunder or with respect to Hedging Instruments) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (b) the occurrence under any Hedging Instrument of an Early Termination Date (as defined in such Hedging Instrument) resulting from (A) any event of default under such Hedging Instrument as to which an Obligor is the Defaulting Party (as defined in such Hedging Instrument) or (B) any Termination Event (as so defined) as to which an Obligor is an Affected Party (as so defined) and, in either event, the termination value with respect to any such Hedging Instrument owed by the relevant Obligor as a result thereof is greater than $100,000,000 and the relevant Obligor fails to pay such termination value when due after applicable grace periods or (c) any other event shall occur or condition shall exist under any agreement or instrument evidencing, securing or relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to cause or permit the holder or holders of such Indebtedness to cause such Indebtedness to become due and payable prior to its scheduled maturity (other than as a result of any sale or other disposition of any property or assets under the terms of such Indebtedness); or (d) any such Indebtedness shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption or by voluntary agreement), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness is required to be made, in each case prior to the scheduled maturity thereof (other than as a result of any sale or other disposition of any property or assets under the terms of such Indebtedness); provided that any required prepayment or right to require prepayment triggered by terms that are certified by the Borrower to be unique to, but customary in, ship financings shall not constitute an Event of Default under this Section 8.1.4 so long as any required prepayment is made when due. For purposes of determining Indebtedness for any Hedging Instrument, the principal amount of the obligations under any such instrument at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the relevant Obligor or any Principal Subsidiary would be required to pay if such instrument were terminated at such time.
SECTION 8.1.5. Bankruptcy, Insolvency, etc.
The Borrower, any of the Material Subsidiary Guarantors or any of the Principal Subsidiaries (or any of its other Subsidiaries to the extent that the relevant event described below would have a Material Adverse Effect) shall:
(a)    generally fail to pay, or admit in writing its inability to pay, its debts as they become due;
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(b)    apply for, consent to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or other custodian for it or any of its property, or make a general assignment for the benefit of creditors;
(c)    in the absence of such application, consent or acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or other custodian for it or for a substantial part of its property, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 60 days, provided that in the case of such an event in respect of an Obligor or any Material Subsidiary Guarantor, such Person hereby expressly authorises the Facility Agent and each Lender to appear in any court conducting any relevant proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents;
(d)    permit or suffer to exist the commencement of any bankruptcy, reorganisation, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of each Obligor, any Material Subsidiary Guarantor or any of such Subsidiaries, and, if any such case or proceeding is not commenced by an Obligor, such Material Subsidiary Guarantor or such Subsidiary, such case or proceeding shall be consented to or acquiesced in by the relevant Obligor, such Material Subsidiary Guarantor or such Subsidiary or shall result in the entry of an order for relief or shall remain for 60 days undismissed, provided that each Obligor and each Material Subsidiary Guarantor hereby expressly authorises the Facility Agent and each Lender to appear in any court conducting any such case or proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents; or
(e)    take any corporate action authorising, or in furtherance of, any of the foregoing.
SECTION 8.2. Action if Bankruptcy.
If any Event of Default described in clauses (b) through (d) of Section 8.1.5 shall occur with respect to any Group Member, the Commitments (if not theretofore terminated) shall automatically terminate and the outstanding principal amount of the Loan and all other Obligations shall automatically be and become immediately due and payable, without notice or demand.
SECTION 8.3. Action if Other Event of Default.
If any Event of Default (other than any Event of Default described in clauses (b) through (d) of Section 8.1.5 with respect to an Obligor) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Facility Agent, upon the direction of the Required Lenders, shall by notice to the Borrower declare all of the outstanding principal amount of the Loan and other Obligations to be due and payable and/or the Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of the Loan and other Obligations shall be and become immediately due and payable, without further notice, demand or presentment, and/or, as the case may be, the Commitments shall terminate.
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ARTICLE IX
PREPAYMENT EVENTS
SECTION 9.1. Listing of Prepayment Events.
Each of the following events or occurrences described in this Section 9.1 shall constitute a "Prepayment Event".
SECTION 9.1.1. Change of Control
There occurs any Change of Control.
SECTION 9.1.2. Unenforceability
Any Loan Document shall cease to be the legally valid, binding and enforceable obligation of an Obligor or, to the extent applicable, any Material Subsidiary Guarantor (in each case, other than with respect to any provisions of any Loan Document (i) identified as unenforceable in the form of any opinion set forth as Exhibits B-1 to B-3 or in any opinion delivered to the Facility Agent after the Effective Date in connection with this Agreement or (ii) that a court of competent jurisdiction has determined are not material) and such event shall continue unremedied for 15 days after notice thereof has been given to the Borrower by the Facility Agent.
SECTION 9.1.3. Approvals
Any material license, consent, authorisation, registration or approval at any time necessary to enable an Obligor, any Material Subsidiary Guarantor or any Principal Subsidiary to conduct its business shall be revoked, withdrawn or otherwise cease to be in full force and effect, unless the same would not have a Material Adverse Effect.
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations
The Borrower shall default in the due performance and observance of any of the covenants set forth in Sections 4.12 or 7.2.4 (but excluding Sections 7.2.4(A) and 7.2.4(B) (which shall be regulated in accordance with Section 9.1.13(d)) and also excluding Section 7.2.4(C), a breach of which is regulated in accordance with Section 8.1.3); provided that any default in respect of the due performance or observance of any of the covenants set forth in Section 7.2.4 (but excluding Sections 7.2.4(A) and 7.2.4(B) inclusive) that occurs during the Financial Covenant Waiver Period (but without prejudice to the rights of the Lenders in respect of any further breach that may occur following the expiry of the Financial Covenant Waiver Period) shall not (as long as no Event of Default under Section 8.1.5 has occurred and is continuing, or no Prepayment Event under Section 9.1.13 or Section 9.1.14 has occurred, in each case during the Financial Covenant Waiver Period) constitute a Prepayment Event.
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SECTION 9.1.5. Judgments
Any judgment or order for the payment of money in excess of $100,000,000 shall be rendered against an Obligor or any of the Principal Subsidiaries by a court of competent jurisdiction and the relevant Obligor or such Principal Subsidiary shall have failed to satisfy such judgment and either:
(a)    enforcement proceedings in respect of any material assets of that Obligor or such Principal Subsidiary shall have been commenced by any creditor upon such judgment or order and shall not have been stayed or enjoined within five (5) Business Days after the commencement of such enforcement proceedings; or
(b)    there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
SECTION 9.1.6. Condemnation, etc.
The Purchased Vessel shall be condemned or otherwise taken under colour of law or requisitioned and the same shall continue unremedied for at least 20 days, unless such condemnation or other taking would not have a Material Adverse Effect.
SECTION 9.1.7. Arrest
The Purchased Vessel shall be arrested and the same shall continue unremedied for at least 20 days, unless such arrest would not have a Material Adverse Effect.
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel
The Purchased Vessel is sold to a company which is not the Original Borrower or the Borrower or any of their Subsidiaries, (other than for the purpose of a lease back to the Original Borrower, the Borrower or any other Subsidiary of either of them).
SECTION 9.1.9. Delayed Delivery of the Purchased Vessel
If, within 15 days after the Disbursement Date, the Loan has not been utilised to pay for delivery of the Purchased Vessel, unless (i) the Loan has been returned to the Facility Agent as prepayment in accordance with Section 3.2(a) or 3.7 or (ii) the proceeds of the Loan have been deposited to the Pledged Accounts in accordance with Section 4.12.
SECTION 9.1.10. Termination of the Construction Contract
If the Construction Contract is terminated in accordance with its terms or by other lawful means prior to delivery of the Purchased Vessel and the parties thereto do not reach an agreement to reinstate the Construction Contract within 30 days after such termination.
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SECTION 9.1.11. Termination, etc. of the Hermes Insurance Policy
If the Hermes Insurance Policy fails to be in full force and effect, is terminated or cancelled or is no longer valid, or it is suspended for more than six (6) months, in each case, so long as (a) such failure, termination, cancellation, invalidity or suspension is not due to the gross negligence or wilful misconduct of any Lender and (b) the relevant parties to the Hermes Insurance Policy do not reach an agreement to reinstate the Hermes Insurance Policy within 60 days after such failure, termination, cancellation or invalidity or the end of such six-month period, as the case may be. It being agreed that the Facility Agent shall promptly notify the Borrower upon receipt by Hermes of a written notice that the Hermes Insurance Policy is no longer in full force and effect, has been terminated, cancelled, is no longer valid or suspended.
Notwithstanding anything else contained in this Agreement, if, prior to delivery of the Purchased Vessel, the Borrower makes a Mandatory Prepayment pursuant to Section 9.2 as a result of Section 9.1.9 or a voluntary prepayment pursuant to Section 3.2(a) and the Purchased Vessel is delivered prior to the Commitment Termination Date, the Borrower shall be entitled to make an additional Loan Request prior to the Commitment Termination Date as if the funds had not been previously advanced. Payment of the Loan made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4.
SECTION 9.1.12. Illegality
No later than the close of business on the last day of the Option Period related to the giving of any Illegality Notice by an affected Lender pursuant to Section 3.2(d), either: (x) the Borrower has not elected to take an action specified in clause (1) or (2) of Section 3.2(d) or (y) if any such election shall have been made, the Borrower has failed to take the action required in respect of such election.
SECTION 9.1.13. Framework Prohibited Events
a.    The Borrower declares, pays or makes or agrees to pay or make, directly or indirectly, any Restricted Payment, except for (i) dividends or other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests or options to purchase Equity Interests, (ii) Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans (including with respect to performance shares issued in the ordinary course of business) for present or former officers, directors, consultants or employees of the Borrower in the ordinary course of business consistent with past practice and (iii) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exercisable for Equity Interests of the Borrower;
b.    a Group Member makes any payment of any kind under any shareholder loan;
c.    a Group Member sells, transfers, leases or otherwise disposes of any its assets, whether by one or a series of related transactions and that disposal or action was not conducted on arms' length terms between a willing seller and a willing buyer and for fair market value;
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d.    any Group Member breaches any of the requirements of Section 7.1.1.(h), Section 7.1.1.(i), Section 7.1.1.(l), Section 7.1.1.(m), Section 7.1.1.(n), Section 7.1.9, Section 7.1.11, Section 7.2.4(A) or Section 7.2.4(B);
e.    a Group Member completes a Debt Incurrence;
f.    a Group Member enters into a Restricted Loan Arrangement; and/or
g.    a Group Member makes a Restricted Voluntary Prepayment.
SECTION 9.1.14. Principles and Framework
The Borrower shall default in the due performance and observance of the Principles and/or the Framework (it being agreed that if there is inconsistency between the terms of the Principles and the Framework, the Framework shall prevail) and, if capable of remedy such default shall continue unremedied for a period of ten (10) days after notice thereof shall have been given to the Borrower by the Facility Agent; provided that, if the default does not otherwise constitute a Default or a Prepayment Event under another Section of this Agreement, as amended to date, the Borrower, the Facility Agent and Hermes shall negotiate a resolution in good faith for a maximum period of fifteen (15) days after notice thereof shall have been given to the Borrower by the Facility Agent.
SECTION 9.2. Mandatory Prepayment
If any Prepayment Event shall occur and be continuing (and subject, in the case of Section 9.1.11, to Section 11.17 and subject also in the case of Sections 9.1.13 and 9.1.14, to sub-paragraph b below), the Facility Agent, upon the direction of the Required Lenders, shall by notice to the Borrower either (i) if the Disbursement Date has occurred and the Loan disbursed (but without prejudice to the last paragraph of Section 9.1), require the Borrower to prepay in full on the date of such notice all principal of and interest on the Loan and all other Obligations (and, in such event, the Borrower agrees to so pay the full unpaid amount of the Loan and all accrued and unpaid interest thereon and all other Obligations) or (ii) if the Disbursement Date has not occurred, terminate the Commitments; provided that:
a.    if such Prepayment Event arises under Section 9.1.12, the remedy available under this Section 9.2 shall be limited to that provided above in clause (i) and only with respect to the portion of the Loan held by the affected Lender that gave the relevant Illegality Notice
b.    if such Prepayment Event arises under Section 9.1.13 or Section 9.1.14 such prepayment event shall not give rise to an entitlement on the part of the Lenders to terminate the Commitments or, where the Loan has been advanced, to require that the Loan is prepaid but instead, where a notice is given by the Facility Agent pursuant to this Section 9.2 following the occurrence of a Prepayment Event under either Section 9.1.13 or Section 9.1.14, the waiver of Section 7.2.4 contained in Section 9.1.4 shall immediately cease such that any breach of Section 7.2.4 in existence as at the date of the notice from the Facility Agent referred to in the first paragraph of this Section 9.2
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or any breach occurring at any time after such notice shall constitute a Prepayment Event with all attendant consequences.
ARTICLE X
THE FACILITY AGENT AND THE HERMES AGENT
SECTION 10.1. Actions.
Each Lender hereby appoints KfW IPEX, as Facility Agent and as Hermes Agent, as its agent under and for purposes of this Agreement and each other Loan Document (for purposes of this Article X, the Facility Agent and the Hermes Agent are referred to collectively as the "Agents"). Each Lender authorises the Agents to act on behalf of such Lender under this Agreement and each other Loan Document and, in the absence of other written instructions from the Required Lenders received from time to time by the Agents (with respect to which each Agent agrees that it will comply, except as otherwise provided in this Section 10.1 or as otherwise advised by counsel), to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Agents by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto. Neither Agent shall be obliged to act on the instructions of any Lender or the Required Lenders if to do so would, in the opinion of such Agent, be contrary to any provision of this Agreement or any other Loan Document or to any law, or would expose such Agent to any actual or potential liability to any third party.
SECTION 10.2. Indemnity.
Each Lender hereby indemnifies (which indemnity shall survive any termination of this Agreement) each Agent, pro rata according to such Lender's Percentage, from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel) that be incurred by or asserted or awarded against, such Agent in any way relating to or arising out of this Agreement and any other Loan Document or any action taken or omitted by such Agent under this Agreement or any other Loan Document; provided that no Lender shall be liable for the payment of any portion of such claims, damages, losses, liabilities and expenses which have resulted from such Agent's gross negligence or wilful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that such Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any such indemnified costs, this Section applies whether any such investigation, litigation or proceeding is brought by any Agent, any Lender or a third party. Neither Agent shall be required to take any action hereunder or under any other Loan Document, or to prosecute or defend any suit in respect of this Agreement or any other Loan Document, unless it is expressly required to do so under this Agreement or is indemnified hereunder to its satisfaction. If any indemnity in favour of an Agent shall be or become, in such Agent's determination, inadequate, such Agent may call for additional indemnification from the Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given.
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SECTION 10.3. Funding Reliance, etc.
Each Lender shall notify the Facility Agent by 4:00 p.m., Frankfurt time, one day prior to the advance of the Loan if it is not able to fund the following day. Unless the Facility Agent shall have been notified by telephone, confirmed in writing, by any Lender by 4:00 p.m., Frankfurt time, on the day prior to the advance of the Loan that such Lender will not make available the amount which would constitute its Percentage of the Loan on the date specified therefor, the Facility Agent may assume that such Lender has made such amount available to the Facility Agent and, in reliance upon such assumption, may, but shall not be obliged to, make available to the Borrower a corresponding amount. If and to the extent that such Lender shall not have made such amount available to the Facility Agent, such Lender and the Borrower severally agree to repay the Facility Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date the Facility Agent made such amount available to the Borrower to the date such amount is repaid to the Facility Agent, at the interest rate applicable at the time to the Loan without premium or penalty.
SECTION 10.4. Exculpation.
Neither of the Agents nor any of their respective directors, officers, employees or agents shall be liable to any Lender for any action taken or omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for its own wilful misconduct or gross negligence. Without limitation of the generality of the foregoing, each Agent (i) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it and in accordance with the advice of such counsel, accountants or experts, (ii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement, (iii) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of the Obligors or the existence at any time of any Default or Prepayment Event or to inspect the property (including the books and records) of the Obligors, (iv) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto, (v) shall incur no liability under or in respect of this Agreement by action upon any notice, consent, certificate or other instrument or writing (which may be by telecopier) believed by it to be genuine and signed or sent by the proper party or parties, and (vi) shall have no responsibility to the Obligors or any Lender on account of (A) the failure of a Lender or an Obligor to perform any of its obligations under this Agreement or any Loan Document; (B) the financial condition of the Obligors; (C) the completeness or accuracy of any statements, representations or warranties made in or pursuant to this Agreement or any Loan Document, or in or pursuant to any document delivered pursuant to or in connection with this Agreement or any Loan Document; or (D) the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of this Agreement or any Loan Document or of any document executed or delivered pursuant to or in connection with any Loan Document.
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SECTION 10.5. Successor.
The Facility Agent may resign as such at any time upon at least 30 days' prior notice to the Borrower and all Lenders, provided that any such resignation shall not become effective until a successor Facility Agent has been appointed as provided in this Section 10.5 and such successor Facility Agent has accepted such appointment. If the Facility Agent at any time shall resign, the Required Lenders shall, subject to the immediately preceding proviso and subject to the consent of the Borrower (such consent not to be unreasonably withheld), appoint another Lender as a successor to the Facility Agent which shall thereupon become such Facility Agent's successor hereunder (provided that the Required Lenders shall, subject to the consent of the Borrower unless an Event or Default or a Prepayment Event shall have occurred and be continuing (such consent not to be unreasonably withheld or delayed) offer to each of the other Lenders in turn, in the order of their respective Percentages of the Loan, the right to become successor Facility Agent). If no successor Facility Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the Facility Agent's giving notice of resignation, then the Facility Agent may, on behalf of the Lenders, appoint a successor Facility Agent, which shall be one of the Lenders or a commercial banking institution having a combined capital and surplus of at least $1,000,000,000 (or the equivalent in other currencies), subject, in each case, to the consent of the Borrower (such consent not to be unreasonably withheld). Upon the acceptance of any appointment as Facility Agent hereunder by a successor Facility Agent, such successor Facility Agent shall be entitled to receive from the resigning Facility Agent such documents of transfer and assignment as such successor Facility Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the resigning Facility Agent, and the resigning Facility Agent shall be discharged from its duties and obligations under this Agreement. After any resigning Facility Agent's resignation hereunder as the Facility Agent, the provisions of:
(a)    this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Facility Agent under this Agreement; and
(b)    Section 11.3 and Section 11.4 shall continue to inure to its benefit.
If a Lender acting as the Facility Agent assigns its Loan to one of its Affiliates, such Facility Agent may, subject to the consent of the Borrower (such consent not to be unreasonably withheld or delayed) assign its rights and obligations as Facility Agent to such Affiliate.
SECTION 10.6. Loans by the Facility Agent.
The Facility Agent shall have the same rights and powers with respect to the Loan made by it or any of its Affiliates. The Facility Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Obligors or any Affiliate of the Obligors as if the Facility Agent were not the Facility Agent hereunder and without any duty to account therefor to the Lenders. The Facility Agent shall have no duty to disclose information obtained or received by it or any of its Affiliates relating to any Obligor or its Subsidiaries to the extent such information was obtained or received in any capacity other than as the Facility Agent.
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SECTION 10.7. Credit Decisions.
Each Lender acknowledges that it has, independently of each Agent and each other Lender, and based on such Lender's review of the financial information of the Obligors, this Agreement, the other Loan Documents (the terms and provisions of which being satisfactory to such Lender) and such other documents, information and investigations as such Lender has deemed appropriate, made its own credit decision to extend its Commitment. Each Lender also acknowledges that it will, independently of each Agent and each other Lender, and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under this Agreement or any other Loan Document.
SECTION 10.8. Copies, etc.
Each Agent shall give prompt notice to each Lender of each notice or request required or permitted to be given to such Agent by an Obligor pursuant to the terms of this Agreement and the other Loan Documents (unless concurrently delivered to the Lenders by the relevant Obligor). Each Agent will distribute to each Lender each document or instrument received for its account and copies of all other communications received by such Agent from the Obligors for distribution to the Lenders by such Agent in accordance with the terms of this Agreement and the other Loan Documents.
SECTION 10.9. The Agents' Rights.
Each Agent may (i) assume that all representations or warranties made or deemed repeated by the Obligors in or pursuant to this Agreement or any Loan Document are true and complete, unless, in its capacity as the Facility Agent, it has acquired actual knowledge to the contrary, (ii) assume that no Default has occurred unless, in its capacity as an Agent, it has acquired actual knowledge to the contrary, (iii) rely on any document or notice believed by it to be genuine, (iv) rely as to legal or other professional matters on opinions and statements of any legal or other professional advisers selected or approved by it, (v) rely as to any factual matters which might reasonably be expected to be within the knowledge an Obligor on a certificate signed by or on behalf of that Obligor and (vi) refrain from exercising any right, power, discretion or remedy unless and until instructed to exercise that right, power, discretion or remedy and as to the manner of its exercise by the Lenders (or, where applicable, by the Required Lenders) and unless and until such Agent has received from the Lenders any payment which such Agent may require on account of, or any security which such Agent may require for, any costs, claims, expenses (including legal and other professional fees) and liabilities which it considers it may incur or sustain in complying with those instructions.
SECTION 10.10. The Facility Agent's Duties.
The Facility Agent shall (i) if requested in writing to do so by a Lender, make enquiry and advise the Lenders as to the performance or observance of any of the provisions of this Agreement or any other Loan Document by any Obligor or as to the existence of an Event of Default and (ii) inform the Lenders promptly of any Event of Default of which the Facility Agent has actual knowledge.
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The Facility Agent shall not be deemed to have actual knowledge of the falsehood or incompleteness of any representation or warranty made or deemed repeated by the Obligors or actual knowledge of the occurrence of any Default unless a Lender or an Obligor shall have given written notice thereof to the Facility Agent in its capacity as the Facility Agent. Any information acquired by the Facility Agent other than specifically in its capacity as the Facility Agent shall not be deemed to be information acquired by the Facility Agent in its capacity as the Facility Agent.
The Facility Agent may, without any liability to account to the Lenders, generally engage in any kind of banking or trust business with the Obligors or with any Obligor's subsidiaries or associated companies or with a Lender as if it were not the Facility Agent.
SECTION 10.11. Employment of Agents.
In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to this Agreement or the Loan Documents, each Agent shall be entitled to employ and pay agents to do anything which such Agent is empowered to do under or pursuant to this Agreement or the Loan Documents (including the receipt of money and documents and the payment of money); provided that, unless otherwise provided herein, including without limitation Section 11.3, the employment of such agents shall be for such Agent's account, and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by such Agent in good faith to be competent to give such opinion, advice or information.
SECTION 10.12. Distribution of Payments.
The Facility Agent shall pay promptly to the order of each Lender that Lender's Percentage Share of every sum of money received by the Facility Agent pursuant to this Agreement or the Loan Documents (with the exception of any amounts payable pursuant to the Fee Letter and any amounts which, by the terms of this Agreement or the Loan Documents, are paid to the Facility Agent for the account of the Facility Agent alone or specifically for the account of one or more Lenders) and until so paid such amount shall be held by the Facility Agent on trust absolutely for that Lender.
SECTION 10.13. Reimbursement.
The Facility Agent shall have no liability to pay any sum to a Lender until it has itself received payment of that sum. If, however, the Facility Agent does pay any sum to a Lender on account of any amount prospectively due to that Lender pursuant to Section 10.12 before it has itself received payment of that amount, and the Facility Agent does not in fact receive payment within two (2) Business Days after the date on which that payment was required to be made by the terms of this Agreement or the Loan Documents, that Lender will, on demand by the Facility Agent, refund to the Facility Agent an amount equal to the amount received by it, together with an amount sufficient to reimburse the Facility Agent for any amount which the Facility Agent may certify that it has been required to pay by way of interest on money borrowed to fund the amount in question during the period beginning on the date on which that amount was required
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to be paid by the terms of this Agreement or the Loan Documents and ending on the date on which the Facility Agent receives reimbursement.
SECTION 10.14. Instructions.
Where an Agent is authorised or directed to act or refrain from acting in accordance with the instructions of the Lenders or of the Required Lenders each of the Lenders shall provide such Agent with instructions within three (3) Business Days of such Agent's request (which request may be made orally or in writing). If a Lender does not provide such Agent with instructions within that period, that Lender shall be bound by the decision of such Agent. Nothing in this Section 10.14 shall limit the right of such Agent to take, or refrain from taking, any action without obtaining the instructions of the Lenders or the Required Lenders if such Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Lenders under or in connection with this Agreement or the Loan Documents. In that event, such Agent will notify the Lenders of the action taken by it as soon as reasonably practicable, and the Lenders agree to ratify any action taken by the Facility Agent pursuant to this Section 10.14.
SECTION 10.15. Payments.
All amounts payable to a Lender under this Section 10.15 shall be paid to such account at such bank as that Lender may from time to time direct in writing to the Facility Agent.
SECTION 10.16. "Know your customer" Checks.
The Borrower will promptly on any Lender's request supply to it any documentation or other evidence that is reasonably required by that Lender for itself to enable that Lender:
(a)    to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks that that Lender or any such person is obliged to carry out under all applicable laws and regulations pursuant to the transactions contemplated in the Loan Documents; and
(b)    to comply with its obligations under all applicable laws and regulations to prevent money laundering and corruption and to conduct ongoing monitoring of the business relationship with the Obligors.
SECTION 10.17. No Fiduciary Relationship.
Except as provided in Section 10.12, no Agent shall have any fiduciary relationship with or be deemed to be a trustee of or for any other person and nothing contained in this Agreement or any Loan Document shall constitute a partnership between any two or more Lenders or between either Agent and any other person.
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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 or change the definition of "Required Lenders" shall be made without the consent of each Lender;
(c)    increase the Commitment of any Lender shall be made without the consent of such Lender;
(d)    reduce any fees described in Article III payable to any Lender shall be made without the consent of such Lender;
(e)    extend the Commitment Termination Date of any Lender shall be made without the consent of such Lender;
(f)    extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on the Loan (or reduce the principal amount of or rate of interest on the Loan) owed to any Lender shall be made without the consent of such Lender; or
(g)    affect adversely the interests, rights or obligations of the Facility Agent in its capacity as such shall be made without consent of the Facility Agent.
No failure or delay on the part of the Facility Agent or any Lender in exercising any power or right under this Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Facility Agent or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The Lenders hereby agree, at any time and from time to time that the Nordea Agreement or the Bank of Nova Scotia Agreement is amended or refinanced, to negotiate in good faith to amend this Agreement to conform any representations, warranties, covenants or events of default in this Agreement to the amendments made to any substantively comparable provisions in the Nordea Agreement or the Bank of Nova Scotia Agreement or any refinancing thereof.
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SECTION 11.2. Notices.
(a)    All notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing, by facsimile or by electronic mail and addressed, delivered or transmitted to such party at its address, facsimile number or electronic mail address set forth below its signature hereto or, in the case of the New Lenders (as defined in Amendment Number Three), as set out in Schedule 1 of Amendment Number Three, or as otherwise set out or set forth in the Lender Assignment Agreement or at such other address, or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient.
(b)    So long as KfW IPEX is the Facility Agent, an Obligor may provide to the Facility Agent all information, documents and other materials that it furnishes to the Facility Agent hereunder or any other Loan Document (and any guaranties, security agreements and other agreements relating thereto), including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing advance or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due hereunder or any other Loan Document prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of the Agreement and/or any advance or other extension of credit hereunder (all such non-excluded communications being referred to herein collectively as "Communications"), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Facility Agent at Ole_Christian.Sande@kfw.de and maritime-industries-administration@kfw.de (or such other email address notified by the Facility Agent to the Borrower); provided that any Communication requested pursuant to Section 7.1.1(h) shall be in a format acceptable to the Borrower and the Facility Agent.
(c)    The Borrower agrees that the Facility Agent may make such items included in the Communications as the Borrower may specifically agree available to the Lenders by posting such notices, at the option of the Borrower, on Intralinks or any similar such platform (the "Platform") acceptable to the Borrower. Although the primary web portal is secured with a dual firewall and a User ID/Password Authorisation System and the Platform is secured through a single user per deal authorisation method whereby each user may access the Platform only on a deal-by-deal basis, each Obligor acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided "as is" and "as available" and (iii) neither the Facility Agent nor any of its Affiliates warrants the
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accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Facility Agent or any of its Affiliates in connection with the Platform.
(d)    The Facility Agent agrees that the receipt of Communications by the Facility Agent at its e-mail address set forth above shall constitute effective delivery of such Communications to the Facility Agent for purposes hereunder and any other Loan Document (and any guaranties, security agreements and other agreements relating thereto).
SECTION 11.3. Payment of Costs and Expenses.
The Borrower agrees to pay on demand all reasonable expenses of the Facility Agent and KfW (including the reasonable fees and out-of-pocket expenses of counsel to the Facility Agent, and of local counsel, if any, who may be retained by counsel to the Facility Agent and, in the case of KfW, counsel retained by KfW with the Borrower's prior approval in connection with the initial syndication of the Loan) in connection with the initial syndication of the Loan and 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. In addition, the Borrower agrees to pay (i) reasonable fees and out of pocket expenses of counsel to the Facility Agent and (if and to the extent that KfW uses the same counsel as that of the Facility Agent) of counsel to KfW in connection with the funding under this Agreement. The Borrower further agrees to pay, and to save the Facility Agent and the Lenders harmless from all liability for, any stamp, recording, documentary or other similar taxes arising from the execution, delivery or enforcement of this Agreement or the borrowing hereunder or any other Loan Documents. The Borrower also agrees to reimburse the Facility Agent and each Lender upon demand for all reasonable out-of-pocket expenses (including reasonable attorneys' fees and legal expenses) incurred by the Facility Agent or such Lender in connection with (x) the negotiation of any restructuring or "work-out", whether or not consummated, of any Obligations and (y) the enforcement of any Obligations. For the purposes of this Section 11.3, references to "KfW" shall mean KfW only in its capacity as set out in sub-clauses (a) and (b) of the definition of "KfW".
SECTION 11.4. Indemnification.
In consideration of the execution and delivery of this Agreement by each Lender and the extension of the Commitments, the Borrower hereby indemnifies and holds harmless the Facility Agent, each Lender and each of their respective Affiliates and their respective officers, advisors, directors and employees (collectively, the "Indemnified Parties") from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defence in connection therewith), in
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each case arising out of or in connection with or by reason of this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby or any actual or proposed use of the proceeds of the Loans (collectively, the "Indemnified Liabilities"), except to the extent such claim, damage, loss, liability or expense (i) is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party's gross negligence or wilful misconduct or the material breach by such Indemnified Party of its obligations under this Agreement or any other Loan Document and which breach is not attributable to the Borrower's own breach of the terms of this Agreement or any other Loan Document or (ii) relates to a FATCA Deduction required to be made by a party to this Agreement. In the case of an investigation, litigation or other proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its directors, security holders or creditors, an Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto. Each Indemnified Party shall (a) furnish the Borrower with prompt notice of any action, suit or other claim covered by this Section 11.4, (b) not agree to any settlement or compromise of any such action, suit or claim without the Borrower's prior consent, (c) shall cooperate fully in the Borrower's defence of any such action, suit or other claim (provided that the Borrower shall reimburse such Indemnified Party for its reasonable out-of-pocket expenses incurred pursuant hereto) and (d) at the Borrower's request, permit the Borrower to assume control of the defence of any such claim, other than regulatory, supervisory or similar investigations, provided that (i) the Borrower acknowledges in writing its obligations to indemnify the Indemnified Party in accordance with the terms herein in connection with such claims, (ii) the Borrower shall keep the Indemnified Party fully informed with respect to the conduct of the defence of such claim, (iii) the Borrower shall consult in good faith with the Indemnified Party (from time to time and before taking any material decision) about the conduct of the defence of such claim, (iv) the Borrower shall conduct the defence of such claim properly and diligently taking into account its own interests and those of the Indemnified Party, (v) the Borrower shall employ counsel reasonably acceptable to the Indemnified Party and at the Borrower's expense, and (vi) the Borrower shall not enter into a settlement with respect to such claim unless either (A) such settlement involves only the payment of a monetary sum, does not include any performance by or an admission of liability or responsibility on the part of the Indemnified Party, and contains a provision unconditionally releasing the Indemnified Party and each other indemnified party from, and holding all such persons harmless, against, all liability in respect of claims by any releasing party or (B) the Indemnified Party provides written consent to such settlement (such consent not to be unreasonably withheld or delayed). Notwithstanding the Borrower's election to assume the defence of such action, the Indemnified Party shall have the right to employ separate counsel and to participate in the defence of such action and the Borrower shall bear the fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Borrower to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Borrower and the Indemnified Party and the Indemnified Party shall have concluded that there may be legal defences available to it which are different from or additional to those available to the Borrower and determined that it is necessary to employ separate counsel in order to pursue such defences (in which case the Borrower shall not have the right to assume the defence of such action on the Indemnified Party's behalf), (iii) the Borrower shall not have employed counsel
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reasonably acceptable to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action, or (iv) the Borrower authorises the Indemnified Party to employ separate counsel at the Borrower's expense. The Borrower acknowledges that none of the Indemnified Parties shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Borrower or any of its security holders or creditors for or in connection with the transactions contemplated hereby, except to the extent such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party's gross negligence or wilful misconduct. In no event, however, shall any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings). If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
SECTION 11.5. Survival.
The obligations of the Borrower under Sections 4.3, 4.4, 4.5, 4.6, 4.7, 11.3 and 11.4 and the obligations of the Lenders under Section 10.1, shall in each case survive any termination of this Agreement and the payment in full of all Obligations. The representations and warranties made by the Borrower in this Agreement and in each other Loan Document shall survive the execution and delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability; Independence of Obligations.
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.
The Borrower agrees that the Borrower's obligations under this Agreement (including its obligation to repay the Loan) (a) are independent of the Construction Contract and (b) will not be invalidated, suspended or limited in any way by any termination, rescission, cancellation, invalidation, non-performance or non-completion of the Construction Contract or any other contract, agreement or arrangement relating thereto (other than the Loan Documents) or any dispute or claim between the Borrower, the Original Borrower and/or the Builder and/or any suppliers and/or any other third parties under or in connection with the Construction Contract, or any defence thereto, or any insolvency proceedings relating to the Builder or any other Person.
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.

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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. Third Party Rights.
Notwithstanding the provisions of the Contracts (Rights of Third Parties) Act 1999, no term of this Agreement is enforceable by a person who is not a party to it.
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 7.2.5, the Borrower shall not assign or transfer its rights or obligations hereunder without the prior written consent of the Facility Agent and each Lender; and
(b)    the rights of sale, assignment and transfer of the Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan.
Each Lender may assign its Percentage or portion of the Loan to one or more other Persons (a "New Lender"), or sell participations in its Percentage or portion of the Loan to one or more other Persons; provided that, in the case of assignments, such New Lender enters into a CIRR Agreement; and provided further that, in the case of assignments, such Lender shall use commercially reasonable efforts to assign only to a New Lender that has agreed to enter into an Option A Refinancing Agreement.
SECTION 11.11.1. Assignments
(i) KfW IPEX, as Lender, (A)(1) with the prior consultation and written consent of the Borrower (which consent shall not be unreasonably delayed or withheld but which consent shall be deemed to have been given in the absence of a written notice delivered by the Borrower to KfW IPEX, on or before the fifth Business Day after receipt by the Borrower of KfW IPEX's request for consent, stating, in reasonable detail, the reasons why the Borrower proposes to withhold such consent) may at any time (and from time to time) assign or transfer (including by way of novation) to one or more commercial banks or other financial institutions, when taken together with participations sold by KfW IPEX pursuant to Section 11.11.2, such part of its share of the aggregate principal amount of the Loan or the total aggregate Commitments as does not reduce its share below 50% of the total Loan or total Commitments and (2) after having assigned or transferred, when taken together with participations sold by KfW IPEX pursuant to Section 11.11.2, such part of its share of the aggregate principal amount of the Loan or total aggregate Commitments so as to reduce its said share to 50% of the total Loan or total Commitments
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(pursuant to the foregoing clause (1) and/or Section 11.11.2), with the written consent of the Borrower (which consent may be withheld at the discretion of the Borrower) may at any time (and from time to time) assign or transfer (including by way of novation) to one or more commercial banks or other financial institutions all or any fraction of KfW IPEX's remaining portion of the Loan or remaining Commitment, (B) with notice to the Borrower and, notwithstanding the following clause (ii), without the consent of the Borrower, may assign or transfer at any time to KfW and (C) in connection with the primary syndication of the Loan, at any time (and from time to time) assign or transfer to one or more commercial banks or other financial institutions identified by the Borrower in consultation with KfW IPEX that fraction of KfW IPEX´s Loan or Commitment that the Borrower directs KfW IPEX to assign or transfer.
(ii) Any Lender (other than KfW IPEX) with the prior consultation and written consent of the Borrower and the Facility Agent (which consents shall not be unreasonably delayed or withheld and which consent, in the case of the Borrower, shall be deemed to have been given in the absence of a written notice delivered by the Borrower to the Facility Agent, on or before the fifth Business Day after receipt by the Borrower of such Lender's request for consent, stating, in reasonable detail, the reasons why the Borrower proposes to withhold such consent) may at any time (and from time to time) assign or transfer to one or more commercial banks or other financial institutions all or any fraction of such Lender's Loan; provided that (A) any Affiliate of KfW IPEX shall be subject to the provisions of Section 11.11.1(i) and 11.11.2(f) as if such Affiliate were KfW IPEX and (B) in the case of any other assignee or transferee, such other assignee or transferee shall (1) be reasonably acceptable to the Facility Agent, (2) meet the criteria set out in Section 2.2 of the Terms and Conditions and (3) in the case of a replacement of an Option A Lender, be reasonably acceptable to KfW.
(iii) Any Lender, with notice to the Borrower and the Facility Agent, and, notwithstanding the foregoing clauses (i) and (ii), without the consent of the Borrower, or the Facility Agent may assign or transfer (A) following the Disbursement Date, to any of its Affiliates or (B) following the occurrence and during the continuance of an Event of Default under Sections 8.1.1, 8.1.4(a) or 8.1.5, to any other Person, in either case, all or any fraction of such Lender's portion of the Loan but on the basis that, in the case of clause (A) and clause (B), any assignee or transferee shall (1) be reasonably acceptable to the Facility Agent, (2) meet the criteria set out in Section 2.2 of the Terms and Conditions and (3) in the case of a replacement of an Option A Lender, be reasonably acceptable to KfW.
(iv) Any Lender may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign or charge all or any fraction of its portion of the Loan to (i) any Federal Reserve Bank as collateral security pursuant to Regulation A of the F.R.S. Board and any Operating Circular issued by such Federal Reserve Bank all or any fraction of such Lender's portion of the Loan, (ii) any other federal reserve or central bank responsible for a Lender or (iii) to KfW as collateral security pursuant to the terms of any Option A Refinancing Agreement entered into by such Lender.
(v) No Lender may (notwithstanding the foregoing clauses) assign or transfer any of its rights under this Agreement unless it has given prior written notification of the transfer to Hermes and (if it is then funded by KfW) KfW and has obtained a prior written consent from Hermes and (if it is then funded by KfW) KfW.
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(vi) Nothing in this Section 11.11.1 shall prejudice the right of the Lender to assign its rights under this Agreement to Hermes, if such assignment is required to be made by that Lender to Hermes in accordance with the Hermes Insurance Policy.
Each Person described in the foregoing clauses as being the Person to whom such assignment or transfer is to be made, is hereinafter referred to as an "Assignee Lender". Assignments in a minimum aggregate amount of $25,000,000 (or, if less, all of such Lender's portion of the Loan and Commitment) (which assignment or transfer shall be of a constant, and not a varying, percentage of such Lender's portion of the Loan) are permitted; provided that the Borrower and the Facility Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned or transferred to an Assignee Lender until:
(a)    written notice of such assignment or transfer, together with payment instructions, addresses and related information with respect to such Assignee Lender, shall have been given to the Borrower and the Facility Agent by such Lender and such Assignee Lender;
(b)    such Assignee Lender shall have executed and delivered to the Borrower and the Facility Agent a Lender Assignment Agreement, accepted by the Facility Agent and, if the applicable portion of the Loan is a Fixed Rate Loan, any other agreements required by the Facility Agent or KfW in connection therewith; and
(c)    the processing fees described below shall have been paid.
From and after the date that the Facility Agent accepts such Lender Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to have become a party hereto and to the extent that rights and obligations hereunder have been assigned or transferred to such Assignee Lender in connection with such Lender Assignment Agreement, shall have the rights and obligations of a Lender hereunder and under the other Loan Documents, and (y) the assignor Lender, to the extent that rights and obligations hereunder have been assigned or transferred by it, shall be released from its obligations hereunder and under the other Loan Documents, other than any obligations arising prior to the effective date of such assignment. Except to the extent resulting from a subsequent change in law, in no event shall the Borrower be required to pay to any Assignee Lender any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no such assignment been made. Such assignor Lender or such Assignee Lender must also pay a processing fee to the Facility Agent upon delivery of any Lender Assignment Agreement in the amount of $2,000 (and shall also reimburse the Facility Agent and KfW for any reasonable out-of-pocket costs, including reasonable attorneys' fees and expenses, incurred in connection with the assignment).
SECTION 11.11.2. Participations.
Any Lender may at any time sell to one or more commercial banks or other financial institutions (each of such commercial banks and other financial institutions being herein called a "Participant") participating interests in its Loan; provided that:
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(a)    no participation contemplated in this Section 11.11.2 shall relieve such Lender from its obligations hereunder;
(b)    such Lender shall remain solely responsible for the performance of its obligations hereunder;
(c)    the Borrower and the Facility Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and each of the other Loan Documents;
(d)    no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant's consent, take any actions of the type described in clauses (b) through (f) of Section 11.1;
(e)    the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no participating interest been sold;
(f)    each Lender that sells a participation under this Section 11.11.2 shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each of the Participant's interest in that Lender's portion of the Loan, Commitments or other interests hereunder (the "Participant Register"). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender may treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes hereunder; and
(g)    KfW IPEX may not sell participating interests pursuant to this Section 11.11.2 that, when taken together with Loans and/or Commitments sold by KfW IPEX pursuant to Section 11.11.1, result in KfW IPEX's share of the aggregate principal amount of the Loan and/or the aggregate Commitments being less than 50% of the total Loan or total Commitments, without the written consent of the Borrower (which consent shall not be required following the occurrence and during the continuance of an Event of Default or a Prepayment Event).
The Borrower acknowledges and agrees that each Participant, for purposes of Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and clause (e) of 7.1.1, shall be considered a Lender.
SECTION 11.11.3. Register.
The Facility Agent, acting as agent for the Borrower, shall maintain at its address referred to in Section 11.2 a copy of each Lender Assignment Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment(s) of, and principal amount of the Loan owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes,
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absent manifest error, and the Borrower, the Facility Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any Obligor or any Lender at any reasonable time and from time to time upon reasonable prior notice.
SECTION 11.12. Other Transactions.
Nothing contained herein shall preclude the Facility Agent or any Lender from engaging in any transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or any of its Affiliates in which the Borrower or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13. Hermes Insurance Policy.
SECTION 11.13.1. Terms of Hermes Insurance Policy
(a)    The Hermes Insurance Policy will cover 95% of the Loan.
(b)    The Original Hermes Fee will equal 2.37% of the aggregate principal amount of the Loan (but excluding the Increase Loan Amount) as at the Delivery Date. The Additional Hermes Fee will equal 5.35% of the Increase Loan Amount.
(c)    The parties have entered into this Agreement on the basis that the Hermes Insurance Policy shall contain the following terms and should such terms not be included within the Hermes Insurance Policy, then the Borrower may cancel the Commitment(s):
(i)    25% of the Original Hermes Fee as in effect on the date of issuance of the Hermes Insurance Policy ("First Original Fee") will be payable to the Hermes Agent or Hermes in Dollars within two (2) Business Days of receipt by the Borrower of demand from the Hermes Agent following the later to occur of (i) the issue of the Hermes Insurance Policy and (ii) the Effective Date;
(ii)    25% of the Additional Hermes Fee ("First Amendment Fee”, and together with the First Original Fee, the “First Fee") will be payable to the Hermes Agent or Hermes in Dollars within two (2) Business Days of receipt by the Borrower of demand from the Hermes Agent following the issue of the amendment to the Hermes Insurance Policy made in connection with Amendment Number Three;
(iii)    the balance of the Original Hermes Fee and the balance of the Additional Hermes Fee (after deducting the amount of the First Original Fee and the First Amendment Fee (as applicable)) ("Second Fee") will be payable in Dollars, to the Hermes Agent or Hermes on the Delivery Date;
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(iv)    if the Commitments are cancelled in full by the Borrower or the Lenders on or prior to the Delivery Date (including, for the avoidance of doubt, subsequent to disbursement of the Loan and prepayment thereof by the Borrower under Section 3.7), Hermes shall be required to reimburse the Hermes Agent the amount of the First Fee less an administration fee (such administration fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR2,500);
(v)    if the Commitments are cancelled in part by the Borrower on or prior to the Delivery Date (including, for the avoidance of doubt, subsequent to disbursement of the Loan and prepayment thereof by the Borrower under Section 3.7), Hermes shall be required to reimburse the Hermes Agent an amount equal to a corresponding proportion of the First Fee, based on the proportion of the aggregate Commitments prior to such cancellation to the aggregate Commitments after giving effect to such cancellation, less an administration fee (such administration fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR2,500); and
(vi)    if, after the Delivery Date, the Borrower prepays all or part of the Loan in accordance with this Agreement, Hermes shall be required to reimburse the Hermes Agent an amount equal to a corresponding proportion of the unexpired portion of the Hermes Fee, having regard to the amount of the prepayment and the remaining term of the Loan less the sum of (x) a break funding fee equal to 20% of the unexpired portion of the Hermes Fee and (y) an administration fee (such fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR2,500).
Where the Hermes Agent receives any reimbursement of any Hermes Fee, other than the First Fee prior to the date the Borrower is reimbursed out of proceeds of the Loan for that First Fee, such reimbursed amount received from Hermes shall be used in prepayment of the Loan without any further notice by the Hermes Agent to the Borrower or, where the Loan has already been prepaid in full, any such amount shall be paid directly to the Borrower or as it may direct. The Hermes Agent shall inform the Borrower as soon as reasonably possible after it becomes aware of any decrease in the Hermes Fee which may result in a reimbursement by Hermes of an excess amount to the Hermes Agent and a consequential prepayment of the Loan under this Section.
SECTION 11.13.2. Obligations of the Borrower.
(a)    Provided that the Hermes Insurance Policy complies with Section 11.13.1, the Borrower shall pay (a) the First Fee to the Hermes Agent in accordance with section 11.13.1(c)(i) and (b) the Second Fee to the Hermes Agent on the Delivery Date. In each case, if received by the Hermes Agent, the Hermes Agent shall pay such amount to Hermes.
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(b)    Provided that the Hermes Insurance Policy complies with Section 11.13.1, the Borrower shall pay to the Hermes Agent an issue fee of EUR12,500 for the issue of the Hermes Insurance Policy at the same time that the First Fee is payable.
SECTION 11.13.3. Obligations of the Hermes Agent and the Lenders.
(a)    Promptly upon receipt of the Hermes Insurance Policy from Hermes, the Hermes Agent shall (subject to any confidentiality undertakings given to Hermes by the Hermes Agent pursuant to the terms of the Hermes Insurance Policy) send a copy thereof to the Borrower.
(b)    The Hermes Agent shall perform such acts or provide such information which are, acting reasonably, within its power so to perform or so to provide, as required by Hermes under the Hermes Insurance Policy and as are necessary to ensure that the Lenders obtain the support of Hermes pursuant to the Hermes Insurance Policy.
(c)    The Hermes Agent shall (in the circumstances described in Section 11.13.1(c)(iii), (iv) or (v)):
(i)    make written requests to Hermes seeking a reimbursement of the Hermes Fee promptly after the relevant cancellation or prepayment and (subject to any confidentiality undertakings given to Hermes by the Hermes Agent pursuant to the terms of the Hermes Insurance Policy) provide a copy of the request to the Borrower;
(ii)    use its reasonable endeavours to maximise the amount of any reimbursement of the Hermes Fee to which the Hermes Agent is entitled;
(iii)    pay to the Borrower the full amount of any reimbursement of the Hermes Fee that the Hermes Agent receives from Hermes within two (2) Business Days of receipt with same day value; and
(iv)    relay the good faith concerns of the Borrower to Hermes regarding the amount it is required to pay to Hermes or the amount of any reimbursement to which the Hermes Agent is entitled, it being agreed that the Hermes Agent's obligation shall be no greater than simply to pass on to Hermes the Borrower's concerns.
(d)    Each Lender will cooperate with the Hermes Agent, the Facility Agent and each other Lender, and take such action and/or refrain from taking such action as may be reasonably necessary, to ensure that the Hermes Insurance Policy and each CIRR Agreement continue in full force and effect and shall indemnify and hold harmless each other Lender in the event that the Hermes Insurance Policy or such CIRR Agreement (as the case may be) does not continue in full force and effect due to its gross negligence or wilful default.
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SECTION 11.14. Law and Jurisdiction
SECTION 11.14.1. Governing Law.
This Agreement and any non-contractual obligations arising out of or in respect of this Agreement shall in all respects be governed by and interpreted in accordance with English law.
SECTION 11.14.2. Jurisdiction.
For the exclusive benefit of the Facility Agent and the Lenders, the parties to this Agreement irrevocably agree that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and that any proceedings may be brought in those courts. The Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Section, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum.
SECTION 11.14.3. Alternative Jurisdiction.
Nothing contained in this Section shall limit the right of the Facility Agent or the Lenders to commence any proceedings against the Borrower in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
SECTION 11.14.4. Service of Process.
Without prejudice to the right of the Facility Agent or the Lenders to use any other method of service permitted by law, the Borrower irrevocably agrees that any writ, notice, judgment or other legal process shall be sufficiently served on it if addressed to it and left at or sent by post to RCL Cruises Ltd., presently at Building 2, Aviator Park, Station Road, Addlestone, Surrey KT15 2PG, Attention: General Counsel, and in that event shall be conclusively deemed to have been served at the time of leaving or, if posted, at 9:00 am on the third Business Day after posting by prepaid first class registered post.
SECTION 11.15. Confidentiality.
Each of the Facility Agent and the Lenders agrees to maintain and to cause its Affiliates to maintain the confidentiality of all information provided to it by the Obligors or any Subsidiary of the Obligors, or by the Facility Agent on an Obligor's or such Subsidiary's behalf, under this Agreement, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement or in connection with other business now or hereafter existing or contemplated with the Obligors or any Subsidiary, except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by it or its Affiliates or their respective directors, officers, employees and agents, or (ii) was or becomes available on a non-confidential basis from a source other than the Obligors or any of their respective Subsidiaries so long as such source is not, to its knowledge, prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Obligors or
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any of their respective Affiliates; provided, however, that it may disclose such information (A) at the request or pursuant to any requirement of any self-regulatory body, governmental body, agency or official to which the Facility Agent, any Lender or any of their respective Affiliates is subject or in connection with an examination of the Facility Agent, such Lender or any of their respective Affiliates by any such authority or body, including without limitation the Federal Republic of Germany; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable requirement of law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Facility Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder; (F) to the Facility Agent or such Lender's independent auditors, counsel, and any other professional advisors of the Facility Agent or such Lender who are advised of the confidentiality of such information; (G) to any participant or assignee, provided that such Person agrees to keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (H) as to the Facility Agent, any Lender or their respective Affiliates, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which an Obligor or any Subsidiary is party with the Facility Agent, such Lender or such Affiliate; (I) to its Affiliates and its Affiliates' directors, officers, employees, professional advisors and agents, provided that each such Affiliate, director, officer, employee, professional advisor or agent shall keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; and (J) to any other party to the Agreement. Each of the Facility Agent and the Lenders shall be responsible for any breach of this Section 11.15 by any of its Affiliates or any of its or its Affiliates' directors, officers, employees, professional advisors and agents.
SECTION 11.16. CIRR requirements.
The Borrower acknowledges that:
(a)    the government of the Federal Republic of Germany, the Federal Audit Court or any authorised representatives specified by these bodies shall be authorised at any time to inspect and make or demand copies of the records, accounts, documents and other deeds of any or all of the Lenders relating to this Agreement;
(b)    in the course of its activity as the Facility Agent, the Facility Agent may:
(i)    provide the government of the Federal Republic of Germany with information concerning the transactions to be handled by it under this Agreement; and
(ii)    disclose information concerning the subsidised transaction contemplated by this Agreement in the context of internationally agreed consultation/notification proceedings and statutory specifications, including information received from the Lenders relating to this Agreement; and
(c)    the Facility Agent and (to the extent the Lenders have entered into an Option A Refinancing Agreement with KfW) the Lenders are entitled to disclose to KfW:
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(i)    circumstances pertaining to the Loan, proper repayment and collateralisation;
(ii)    extraordinary events which may jeopardise the proper servicing of the Loan;
(iii)    any information required by KfW with respect to the proper use of any refinancing funds granted to the respective Lender in respect of the Loan; and
(iv)    the Loan Documents;
provided that KfW agrees to keep such information confidential to the same extent required of Lenders pursuant to Section 11.15.
SECTION 11.17. Mitigation.
(a)    If the provisions of Section 3.2(c), 3.2(d) or 9.1.11 apply (and having regard to clause (b) below), the Facility Agent, the Borrower and the Lenders (or, in the case of Section 3.2(c) or 3.2(d), any affected Lender) shall discuss in good faith (but without obligation) for a period (the "Mitigation Period") of not less than 30 days (and which in the case of Section 3.2(d) shall commence on the first day of the 50-day period referred to in that Section and, in the case of Section 9.1.11, shall run concurrently with the 30 day period referred to in that Section) after (x) the date on which the Illegality Notice is given or (y) the date of Section 9.1.11 becomes applicable, as the case may be:
(i)    in the case of Section 3.2(c) or 3.2(d), what steps may be open to the relevant Lender to mitigate or remove such circumstances (including, without limitation, the possibility of assigning the Lender's Commitment to an Affiliate or another Lending Office); and
(ii)    in the case of Section 9.1.11, the circumstances in which Section 9.1.11 has become applicable and whether there are any steps or actions which can be taken to remove the effect of Section 9.1.11 and/or reinstate the Hermes Insurance Policy.
If the provisions of Section 3.2(d) apply, if requested by the Borrower, the affected Lender shall, without limiting such Lender's obligation to enter into discussions as set forth above in this Section 11.17(a), use commercially reasonable efforts to transfer its portion of the Loan to one or more third parties at par during the Mitigation Period in the manner contemplated by Section 3.2(d).
(b)    To the extent required by or considered necessary by any Party, the Lenders (and, in the case of Section 3.2(c) or 3.2(d), any affected Lender) shall use commercially reasonable efforts to include Hermes in all foregoing discussions.
Page 125
(c)    If an Illegality Notice shall be given by any Lender during the period falling 20 days prior to the anticipated Delivery Date, the affected Lender will use all reasonable efforts to accelerate the mitigation steps of the type described or to be discussed pursuant to this Section to try and enable the Commitment of such Lender to still be available for drawing by the Borrower one (1) Business Day (where the Loan is to be denominated in EUR) or two (2) Business Days (where the Loan is to be denominated in Dollars) prior to the Delivery Date in the manner contemplated by this Agreement.
SECTION 11.18. Modification and/or discontinuation of benchmarks
(a)    If a Screen Rate Replacement Event has occurred then, promptly thereafter, the Facility Agent and the Borrower will enter into negotiations with a view to amend this Agreement to replace the LIBO Rate or, as the case may be, the EURO Rate with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks where such negotiations will take into account the then current market standards and will be conducted with a view to reducing or eliminating, to the extent reasonably practicable, any transfer of economic value from one party to another party (any such proposed rate, a "Benchmark Successor Rate"), together with any proposed Benchmark Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 P.M. (New York City time) on the fifth Business Day after the Facility Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, the Required Lenders have delivered to the Facility Agent written notice that such Lenders does not accept such amendment. Such Benchmark Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Facility Agent, such Benchmark Successor Rate shall be applied in a manner as otherwise reasonably determined by the Facility Agent.
(b)    If no Benchmark Successor Rate has been determined and either (x) the circumstances set out in paragraph (a) of the definition of "Screen Rate Replacement Event" in Section 1.1 exist or (y) the Scheduled Unavailability Date has occurred, the Facility Agent will promptly so notify the Borrower and each Lender. Thereafter, (i) the obligation of the Lenders to make or maintain the Loan shall be suspended and (ii) Screen Rate shall no longer be utilized in determining the LIBO Rate or, as the case may be, the EURO Rate. Upon receipt of such notice, the Borrower may revoke any pending Loan Request.
(c)    Until such time as a Benchmark Successor Rate and Benchmark Successor Rate Conforming Changes have been determined and agreed and without prejudice to the obligation of the parties to enter into negotiations with a view to determining or agreeing a Benchmark Successor Rate pursuant to paragraph (a) above, for any Interest Period starting after the Screen Rate Replacement Event, the LIBO Rate or, as the case may be, the EURO Rate shall be replaced by the weighted average of the
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rates notified to the Agent by each Lender five Business Days prior to the first day of that Interest Period, to be that which expresses as a percentage rate per annum the cost the relevant Lender would have of funding an amount equal to its participation in the Loan during the relevant Interest Period from whatever source it may reasonably select. If such amount is less than zero, it shall be deemed to be zero.
(d)    The Facility Agent (acting on the instructions of the Required Lenders) and the Borrower shall, during the period between 1 April 2021 and 30 June 2021, enter into negotiations in good faith with a view to agreeing a basis upon which a Benchmark Successor Rate can be used in replacement of the Screen Rate, together with any associated Benchmark Successor Rate Conforming Changes, and a timetable for the implementation of these changes so that the appropriate changes can be made prior to the Scheduled Unavailability Date.
(e)    Notwithstanding anything else herein, any definition of Benchmark Successor Rate shall provide that in no event shall such Benchmark Successor Rate be less than zero for purposes of this Agreement.
(f)    Section 3.4.6 shall not apply following the Screen Rate Replacement Event.
(g)    Where paragraph (a) above applies, the Borrower shall, within three Business Days of demand, reimburse the Facility Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Facility Agent in responding to, evaluating, negotiating or complying with the requirements set out in that paragraph.
Page 127

IN WITNESS WHEREOF, the parties hereto have caused this Hull No. S-719 Credit Agreement to be executed by their respective officers thereunto duly authorised as of the day and year first above written.

ROYAL CARIBBEAN CRUISES LTD. as Guarantor
By _________________________
Name:
Title:
Address:    1050 Caribbean Way
Miami, Florida 33132
Facsimile No.:    (305) 539-0562
Email:        agibson@rccl.com
bstein@rccl.com
Attention: Vice President, Treasurer
Copy to: General Counsel

Signature Page to Credit Agreement                    Page 128
KFW IPEX-BANK GMBH, as Hermes Agent, Facility Agent and Lender
Commitment
100% of the US Dollar Maximum Loan Amount By__________________________Name:
Title:
By _________________________
Name:
Title:
Address:     Palmengartenstrasse 5-9
D-60325 Frankfurt am Main
Germany
Facsimile No.:     +49 (69) 7431 3768
Email:        maritime-industries-administration@kfw.de
Attention:    Maritime Industries
With a copy to:    Credit Operations
Facsimile No.:    +49 (69) 7431 2944
        Page 129
Exhibit A
Form of Loan Request
[OMITTED]

    
Exhibit B
Table of Commitments
[OMITTED]



    
SIGNATORIES
Amendment No. 3 in respect of Hull S-719

Original Borrower
Silversea Cruise Holding Ltd.    )
Name: Roberto Martinoli    ) /s/ Roberto Martinoli
Title: Chief Executive Officer    )

Guarantor and nominee Borrower
Royal Caribbean Cruises Ltd.    )
Name: Nicholas Cullinan    ) /s/ Nicholas Cullinan
Title: Attorney-in-Fact    )


    [Signature Page to Amendment No. 3 - Hull S-719]
Facility Agent
KfW IPEX-Bank GmbH    )
Name: B. Behrends-Troost / O. Sande    ) /s/ B. Behrends-Troost    /s/ O. Sande
Title: Director / AVP    )

Hermes Agent
KfW IPEX-Bank GmbH    )
Name: B. Behrends-Troost / O. Sande    ) /s/ B. Behrends-Troost    /s/ O. Sande
Title: Director / AVP    )

Existing Lenders
KfW IPEX-Bank GmbH    )
Name: B. Behrends-Troost / O. Sande    ) /s/ B. Behrends-Troost    /s/ O. Sande
Title: Director / AVP    )

MUFG Bank, Ltd.    )
Name: Francois-Xavier Reignier    ) /s/ Francois-Xavier Reignier    
Title: Managing Director    )

Société Générale    )
Name: Stefan Euler / Olga Schneider    ) /s/ Stefan Euler    /s/ Olga Schneider
Title: Managing Director / Vice President    )

Helaba Landesbank     )
Hessen-Thüringen Girozentrale    )
Name: Ralf Lichtenthaler / Lucas Hell    ) /s/ Ralf Lichtenthaler    /s/ Lucas Hell
Title:    )

DZ BANK AG, New York Branch    )
Name: Steffen Philipp / Maximilian Bös    ) /s/ Steffen Philipp        /s/ Maximilian Bös
Title: Senior Vice President / Vice President    )

Standard Chartered Bank    )
Name: James Perkins    ) /s/ James Perkins
Title: Manager    )
    [Signature Page to Amendment No. 3 - Hull S-719]
Bayerische Landesbank, New York Branch    )
Name: Andrew Kjoller / Gina Sandella    ) /s/ Andrew Kjoller        /s/ Gina Sandella
Title: Executive Director / Vice President    )

Commerzbank AG, New York Branch    )
Name: Giovanni Baldini / Christina S. Serrano    ) /s/ Giovanni Baldini        /s/ Christina S. Serrano
Title:    )

New Lenders
AKA AUSFUHRKREDIT-GESELLSCHAFT MBH     )
Name: Matthias Wietbrock / Emma Hartmann     ) /s/ Matthias Wietbrock /s/ Emma Hartmann
Title: Director / Vice President EAF            )
            
Oldenburgische Landesbank Aktiengesellschaft        )
Name: Dirk Stamer / Martin Schmidt                ) /s/ Dirk Stamer /s/ Martin Schmidt
Title: Executive Director / Export Finance Specialist        )


    [Signature Page to Amendment No. 3 - Hull S-719]

Exhibit 10.6
Dated    27 September 2021
    Silversea Cruise Holding Ltd.    (1)
    (the Original Borrower)
    Royal Caribbean Cruises Ltd.    (2)
    (the Guarantor)
    KfW IPEX-Bank GmbH    (3)
    (the Facility Agent)
    KfW IPEX-Bank GmbH    (4)
    (the Hermes Agent)
    The banks and financial institutions listed in Schedule 1    (5)
    (the Lenders)
Amendment No. 3 in connection with
the Credit Agreement in respect of
Hull S-720
IMAGE_0A.JPG




Contents
Clause    Page
1    Interpretation and definitions
2
2    Amendment of the Existing Credit Agreement
3
3    Conditions of effectiveness of Amended Credit Agreement
3
4    Representations and Warranties
5
5    Nomination of the Guarantor as Borrower
6
6    Accession of New Lenders
6
7    Incorporation of Terms
7
8    Fees, Costs and Expenses
7
9    Counterparts
8
10    Governing Law
8
Schedule 1 The Lenders
9
Schedule 2 Form of Amendment Effective Date confirmation – Hull S-720
10
Schedule 3 Amended and Restated Credit Agreement
11
Exhibit A Form of Loan Request
12
Exhibit B Table of Commitments
13



THIS AMENDMENT NO. 3 (this Amendment) is dated 27 September 2021 and made BETWEEN:
(1)    Silversea Cruise Holding Ltd. (a company incorporated and existing under the laws of the Bahamas) (the Original Borrower);
(2)    Royal Caribbean Cruises Ltd. (a corporation organised and existing under the laws of The Republic of Liberia) (the Guarantor);
(3)    KfW IPEX-Bank GmbH as facility agent (the Facility Agent);
(4)    KfW IPEX-Bank GmbH as Hermes agent (the Hermes Agent);
(5)    The banks and financial institutions listed in Schedule 1 as existing lenders (the Existing Lenders); and
(6)    The banks and financial institutions listed in Schedule 1 as new lenders (the New Lenders).
WHEREAS:
(A)    The Original Borrower, the Guarantor, the Facility Agent, the Hermes Agent and the Existing Lenders are parties to a credit agreement dated 19 September 2019 (as amended and restated from time to time, the Existing Credit Agreement), in respect of the vessel bearing Builder’s hull number S-720 (the Vessel) whereby it was agreed that the Existing Lenders would make available to the Original Borrower or (as contemplated by Section 2.6 (Nomination of Royal Caribbean Cruises Ltd. as Borrower) of the Existing Credit Agreement) the Guarantor, upon the terms and conditions therein, a US dollar loan facility (the Facility) up to the US Dollar Equivalent of EUR358,950,000 and calculated on the amount equal to the sum of (a) up to eighty per cent (80%) of the Contract Price of the Vessel but which Contract Price will not exceed EUR 548,050,000 and (b) up to 100% of the Hermes Fee.
(B)    The Original Borrower, the Guarantor and the Builder shall, on or prior to the Amendment Effective Date, enter into an addendum to the Construction Contract (the Addendum) pursuant to which it shall be agreed that the Contract Price shall be increased on the basis to be set out therein.
(C)    In connection with the arrangements referred to in Recital (B) above, the Parties have agreed to amend and restate the Existing Credit Agreement on the basis set out in this Amendment in order to reflect (i) an increase to the Commitments by an amount equal to 80% of the increased cost of the Vessel and 100% of the Additional Hermes Fee (as such term is defined in the Amended Credit Agreement) and (ii) the accession of the New Lenders as Lenders in respect of the relevant portion of the increased Commitments
(D)    The increased Commitments referred to in Recital (C) above shall be assumed by the New Lenders and certain of the Existing Lenders, and accordingly the New Lenders shall become Lenders for the purposes of the Amended Credit Agreement and shall accede to the Amended Credit Agreement on the basis set out in this Amendment.
(E)    The Parties have agreed that, as contemplated by Section 2.6 (Nomination of Royal Caribbean Cruises Ltd. as Borrower) of the Existing Credit Agreement, the Guarantor shall be nominated as the borrower under the Amended Credit Agreement from the date of this Amendment, and accordingly the Original Borrower will, with effect from the date of this Amendment, cease to be a party to, or to have any rights or obligations under, the Existing Credit Agreement and the Guarantor shall assume
    1

all rights and obligations of the Original Borrower under and in connection with the Existing Credit Agreement and, following the Amendment Effective Date, the Amended Credit Agreement.
NOW IT IS AGREED as follows:
1    Interpretation and definitions
1.1    Definitions in the Existing Credit Agreement
(a)    Unless the context otherwise requires or unless otherwise defined in this Amendment, words and expressions defined in the Existing Credit Agreement shall have the same meanings when used in this Amendment.
(b)    The principles of construction set out in the Existing Credit Agreement shall have effect as if set out in this Amendment.
1.2    Definitions
In this Amendment (including its recitals):
Amended Credit Agreement means the Existing Credit Agreement as amended and restated in accordance with this Amendment.
Amendment Effective Date has the meaning given to it in clause 3.
Fee Letter means any letter between the Facility Agent and the Guarantor, as borrower, setting out the fees payable in connection with this Amendment.
Finance Parties means the Facility Agent, the Hermes Agent and the Lenders.
Increase Commitment has the meaning given to it in the form of the Amended Credit Agreement set out in Schedule 3.
Increase Tranche has the meaning given to it in the form of the Amended Credit Agreement set out in Schedule 3.
Lenders has the meaning given to such term in the form of the Amended Credit Agreement set out in Schedule 3 and shall include the Existing Lenders and the New Lenders.
Party means each of the parties to this Amendment.
Security Enhancement Guarantor Confirmation Agreement means the agreement referred to in clause 3.1(b).
1.3    Third party rights
Other than KfW in respect of the rights of KfW under the Loan Documents, unless expressly provided to the contrary in a Loan Document, no term of this Amendment is enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.
1.4    Designation
Each of the Parties designates this Amendment as a Loan Document.
    2

2    Amendment of the Existing Credit Agreement
In consideration of the mutual covenants in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree that, subject to the satisfaction of the conditions precedent set forth in clause 3:
(a)    the Existing Credit Agreement (but without all its Exhibits which, other than in the case of Exhibit A thereto (which shall be replaced pursuant to paragraph (b) below), shall remain in the same form and continue to form part of the Existing Credit Agreement) is hereby amended on the Amendment Effective Date so as to read in accordance with the form of the amended and restated credit agreement set out in Schedule 3, which will, together with the Exhibits to the Existing Credit Agreement, continue to or, in the case of the New Lenders, shall be, binding upon each of the Parties in accordance with its terms as so amended and restated; and
(b)    Exhibit A hereto shall be attached to the Amended Credit Agreement in replacement of Exhibit A thereto and Exhibit B hereto shall be attached to the Amended Credit Agreement as a new Exhibit Q thereto.
3    Conditions of effectiveness of Amended Credit Agreement
3.1    The Amended Credit Agreement shall become effective in accordance with the terms of this Amendment on the date (the Amendment Effective Date) upon which each of the following conditions has been satisfied to the reasonable satisfaction of the Facility Agent:
(a)    the Facility Agent shall have received from the Original Borrower and the Guarantor:
(i)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Amendment and as to the truth and completeness of the attached resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Amendment (including the borrowing or guaranteeing (as applicable) of the Increase Commitment), and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the Original Borrower or the Guarantor (as applicable) cancelling or amending such prior certificate; and
(ii)    a Certificate of Good Standing issued by the relevant authorities in respect of the Original Borrower and the Guarantor;
(b)    the Facility Agent and each Security Enhancement Guarantor shall have entered into an agreement pursuant to which the Security Enhancement Guarantors shall acknowledge the amendments to the Existing Credit Agreement contained in this Amendment and:
(i)    agree that the relevant Security Enhancement Guarantee and each other Loan Document to which that Security Enhancement Guarantor is a party shall remain and continue in full force and effect notwithstanding the amendment and restatement of the Existing Credit Agreement;
(ii)    agree that the relevant Security Enhancement Guarantee and the Guaranteed Liabilities (as defined in the relevant Security Enhancement Guarantee) shall extend to any obligations of the Guarantor under the Amended Credit Agreement, including the
    3

obligations assumed by the Guarantor in connection with the nomination arrangements referred to in clause 5 below; and
(iii)    confirm that guaranteeing the obligations of the Guarantor (as borrower) does not cause any borrowing, guaranteeing or similar limit binding on the relevant Security Enhancement Guarantor to be exceeded,
and the Facility Agent shall have received evidence of the authority of the relevant signatory of each Security Enhancement Guarantor to execute the Security Enhancement Guarantor Confirmation Agreement;
(c)    the Facility Agent shall have received a duly executed copy of each Fee Letter;
(d)    the Facility Agent shall have received evidence that all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent) required to be paid by the Guarantor pursuant to clause 8 below, and all other documented fees and expenses that the Guarantor has otherwise agreed in writing to pay to the Facility Agent, have been paid or will be paid promptly upon being demanded;
(e)    the Facility Agent shall have received opinions, addressed to the Facility Agent (and capable of being relied upon by each Lender) from:
(i)    Higgs & Johnson, counsel to the Original Borrower, as to matters of Bahamian law (and being issued in substantially the same form as the corresponding Bahamian legal opinion issued in connection with the previous amendment to the Existing Credit Agreement);
(ii)    Watson Farley & Williams LLP, counsel to the Guarantor, as to matters of Liberian law (and being issued in substantially the same form as the corresponding Liberian legal opinion issued in connection with the previous amendment to the Existing Credit Agreement); and
(iii)    Norton Rose Fulbright LLP, counsel to the Facility Agent as to matters of English law (and being issued in substantially the same form as the corresponding English legal opinion issued in connection with the previous amendment to the Existing Credit Agreement); and
(iv)    Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Facility Agent as to matters of New York law in respect of the Security Enhancement Guarantor Confirmation Agreement,
or, where applicable, a written approval in principle (which can be given by email) by either of the above counsel of the arrangements contemplated by this Amendment and a confirmation that a formal opinion will follow promptly after the Amendment Effective Date;
(f)    the representations and warranties set out in clause 4 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a Material Adverse Effect (which shall be accurate in all respects)) as of the Amendment Effective Date;
    4

(g)    no Event of Default or Prepayment Event shall have occurred and be continuing or would result from the amendment of the Existing Credit Agreement pursuant to this Amendment;
(h)    the Original Borrower and the Guarantor shall, as required pursuant to clause 7, have provided a letter to the Facility Agent which confirms that RCL Cruises Ltd. has accepted its appointment as process agent in respect of this Amendment;
(i)    KfW has confirmed to the Facility Agent that all relevant Existing Lenders have executed (i) respective amendments to their Option A Refinancing Agreements required in connection with the arrangements contemplated by this Amendment and (ii) any replacement security documents required to be entered into between the Existing Lenders and KfW pursuant to the terms of such amended Option A Refinancing Agreements, and any relevant legal opinions required by KfW in connection with such arrangements have been issued;
(j)    KfW has confirmed to the Facility Agent that all New Lenders have executed (i) Option A Refinancing Agreements in respect of their participation in the Increase Tranche and (ii) any security documents required to be entered into between the New Lenders and KfW pursuant to the terms of such Option A Refinancing Agreements, and any relevant legal opinions required by KfW in connection with such arrangements have been issued;
(k)    the Facility Agent shall have received from Hermes an approval in principle that the Hermes Insurance Policy will be amended in respect of, and shall cover, the increased Maximum Loan Amount and the Increase Tranche;
(l)    the Facility Agent shall have received such documentation and information as any Finance Party shall reasonably request to comply with “know your customer” or similar identification procedures under all laws and regulations applicable to the Finance Parties; and
(m)    the Facility Agent shall have received a certified true copy of the Addendum, evidencing an increase of the Contract Price to EUR 548,050,000 (or such other amount as may be approved by the Lenders).
3.2    The Facility Agent shall notify the Lenders and the Guarantor of the Amendment Effective Date by way of a confirmation in the form set out in Schedule 2 and such confirmation shall be conclusive and binding.
4    Representations and Warranties
(a)    Each of the Guarantor and the Original Borrower represents and warrants that each of the representations and warranties in:
(i)    Article VI of the Existing Credit Agreement; and
(ii)    clause 4(b) of Amendment Agreement Number One,
are deemed to be made by the Guarantor and the Original Borrower on the date of this Amendment and by the Guarantor on the Amendment Effective Date, in each case as if reference to the Loan Documents in each such representation and warranty was a reference to this Amendment and the Security Enhancement Guarantor Confirmation Agreement.
    5

5    Nomination of the Guarantor as Borrower
5.1    It is acknowledged and agreed that pursuant to Section 2.6 (Nomination of Royal Caribbean Cruises Ltd. as Borrower) of the Existing Credit Agreement, the Original Borrower and the Guarantor are entitled, on the basis set out therein, to nominate the Guarantor as the borrower for the purposes of the Existing Credit Agreement and the other Loan Documents. The Parties hereby agree that the Original Borrower and the Guarantor can make such election notwithstanding the absence of the written notification required pursuant to Section 2.6(a) (Nomination of Royal Caribbean Cruises Ltd. as Borrower) of the Existing Credit Agreement.
5.2    The Original Borrower and the Guarantor hereby nominate the Guarantor as the borrower for the purposes of the Amended Credit Agreement and the other Loan Documents, and accordingly, with effect from the date of this Amendment:
(a)    all references to “the Borrower” throughout the Amended Credit Agreement and the other Loan Documents shall be deemed to be references to Royal Caribbean Cruises Ltd. and all references to “the Guarantor” shall be deleted;
(b)    the Guarantor (as Borrower) shall assume, and hereby does assume, all of the rights and obligations of the Original Borrower under the Amended Credit Agreement and the other Loan Documents;
(c)    the Guarantor shall be released from its obligations set out in Article XII of the Amended Credit Agreement and the said Article XII of the Amended Credit Agreement shall cease to apply;
(d)    the Original Borrower will cease to be a party to, or to have any rights or obligations under, the Existing Credit Agreement and the other Loan Documents (and the Lenders hereby release the Original Borrower from its obligations under the Existing Credit Agreement and the other Loan Documents); and
(e)    Section 11.19 (Communications with the Borrower) of the Amended Credit Agreement shall be deleted,
in each case as reflected in the form of Amended Credit Agreement attached to this Amendment.
6    Accession of New Lenders
6.1    For good and valuable consideration (the receipt and adequacy of which is hereby), it is hereby agreed that, with effect from the Amendment Effective Date:
(a)    each New Lender is hereby made a party to the Amended Credit Agreement and a Lender for the purposes of the Amended Credit Agreement as if it were an original signatory to the Existing Credit Agreement;
(b)    each reference to the Lenders in the Amended Credit Agreement shall be deemed to include each New Lender, and accordingly the Amended Credit Agreement shall henceforth be construed in all respects as if references to the Lenders included the New Lenders; and
(c)    each New Lender and each of the other Finance Parties shall (and does) assume obligations towards one another and acquires rights against one another as that New Lender and those Finance Parties would have assumed and/or acquired had that New Lender been an original Lender in respect of the relevant portion of the Increase Commitment and as if the Increase Tranche had always comprised part of the Loan.
6.2    Each New Lender, with effect from the Amendment Effective Date:
    6

(a)    agrees to assume and will assume all of the obligations under the Amended Credit Agreement corresponding to the Increase Commitment set out next to its name in Exhibit B; and
(b)    appoints the Facility Agent and Hermes Agent in their capacities as such on the basis set out in Section 10.1 of the Amended Credit Agreement.
6.3    The existing Commitments of all Existing Lenders and their obligations in respect of the same under the Amended Credit Agreement shall continue in full force and effect.
6.4    The administration details of, and the address for notices and other communications to, each New Lender for the purposes of the Amended Credit Agreement and the other Loan Documents are set out in Schedule 1.
7    Incorporation of Terms
The provisions of Section 11.2 (Notices), Section 11.6 (Severability) and Subsections 11.14.2 (Jurisdiction), 11.14.3 (Alternative Jurisdiction) and 11.14.4 (Service of Process) of the Existing Credit Agreement shall be incorporated into this Amendment as if set out in full in this Amendment and as if references in those sections to “this Agreement” were references to this Amendment and references to each Party are references to each Party to this Amendment.
8    Fees, Costs and Expenses
8.1    The Guarantor shall pay to the Facility Agent (for its own account and for the account of the Lenders (as applicable)) the fees in the amounts and at the times agreed in the Fee Letters.
8.2    The Guarantor shall also pay to the Facility Agent (for the account of KfW) a non-refundable refinancing fee in an amount of (a) €1,000 per Option A Refinancing Agreement entered into with a Lender whose Commitments are equal to or less than €20,000,000 and (b) €2,000 per Option A Refinancing Agreement entered into with a Lender whose Commitments are greater than €20,000,000.
8.3    The payment of the above fees shall be made free and clear of any deduction, restriction or withholding and in immediately available freely transferable cleared funds to such account(s) as the Facility Agent shall notify the Guarantor of in advance or, where applicable, in the relevant Fee Letter.
8.4    The Guarantor agrees to pay on demand all reasonable out-of-pocket costs and expenses of:
(a)    the Facility Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the documents to be delivered hereunder or thereunder; and
(b)    KfW, the Facility Agent and any Lender in connection with the preparation, execution, delivery and administration, modification and amendment of any Option A Refinancing Agreement and any security or other documents executed or to be executed and delivered (including any legal opinions required to be provided by legal counsel to KfW) as a consequence of the parties entering into this Amendment and any other documents to be delivered under this Amendment,
(including the reasonable and documented fees and expenses of counsel for the Facility Agent and KfW with respect hereto and thereto as agreed with the Facility Agent and KfW) in accordance with the terms of Section 11.3 (Payment of Costs and Expenses) of the Existing Credit Agreement and as if references in that section to the Facility Agent are references to the Facility Agent and KfW.
    7

9    Counterparts
This Amendment may be executed in any number of counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original but all counterparts shall together constitute one and the same instrument. The Parties acknowledge and agree that they may execute this Amendment and any variation or amendment to the same, by electronic instrument. The Parties agree that the electronic signatures appearing on the document shall have the same effect as handwritten signatures and the use of an electronic signature on this Amendment shall have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating this Amendment, and evidencing the Parties’ intention to be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests including contract management.
10    Governing Law
This Amendment, and all non-contractual obligations arising in connection with it, shall be governed by and construed in accordance with English law.
The Parties have executed this Amendment the day and year first before written.
    8

Schedule 1
The Lenders

Existing Lenders
KfW IPEX-Bank GmbH
MUFG Bank, Ltd.
Société Générale
Helaba Landesbank Hessen-Thüringen Girozentrale
DZ BANK AG, New York Branch
Standard Chartered Bank
Bayerische Landesbank, New York Branch
Commerzbank AG, New York Branch

New Lenders
Name Address for notices
AKA AUSFUHRKREDIT-GESELLSCHAFT MBH Große Gallusstr. 1-7, 60311 Frankfurt /M, Germany
Oldenburgische Landesbank Aktiengesellschaft Stau 15/17, 26122 Oldenburg, Germany

    9

Schedule 2
Form of Amendment Effective Date confirmation – Hull S-720
[OMITTED]

    10

Schedule 3
Amended and Restated Credit Agreement




    11

_________________________________________
AMENDED AND RESTATED
HULL NO. S-720 CREDIT AGREEMENT
_________________________________________
Dated September 19, 2019
as amended on May 20, 2020
as further amended on July 23, 2020

as further amended and restated on December 21, 2020
and as further amended and restated on March 26, 2021
and as further amended and restated on September 27, 2021

BETWEEN,
Royal Caribbean Cruises Ltd.
as the Borrower,
the Lenders from time to time party hereto,
KfW IPEX-Bank GmbH
as Hermes Agent and Facility Agent
and
KfW IPEX-Bank GmbH
as Initial Mandated Lead Arranger and Sole Bookrunner

Hermes Backed Term Facility Agreement (Hull S-720)
Up to the US Dollar Equivalent of EUR451,925,000


TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms    2
SECTION 1.2. Use of Defined Terms; Other Definitional Provisions    26
SECTION 1.3. Cross-References    27
SECTION 1.4. Application of this Agreement to KfW IPEX as an Option A Lender    27
SECTION 1.5. Accounting and Financial Determinations    27
SECTION 1.6. Contractual Recognition of Bail-In    27
ARTICLE II COMMITMENTS AND BORROWING PROCEDURES
SECTION 2.1. Commitment    28
SECTION 2.2. Commitment of the Lenders    28
SECTION 2.3. Voluntary Reduction of Commitments    29
SECTION 2.4. Borrowing Procedure    30
SECTION 2.5. Funding    31
SECTION 2.6. Nomination of Royal Caribbean Cruises Ltd. as Borrower    32
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments    32
SECTION 3.2. Prepayment    33
SECTION 3.3. Right of cancellation in relation to a Defaulting Lender    35
SECTION 3.4. Interest Provisions    35
SECTION 3.4.1. Rates    35
SECTION 3.4.2. Election of Floating Rate    36
SECTION 3.4.3. Conversion to Floating Rate    37


SECTION 3.4.4. Post-Maturity Rates    38
SECTION 3.4.5. Payment Dates    38
SECTION 3.4.6. Interest Rate Determination; Replacement Reference Banks    38
SECTION 3.5. Commitment Fee    39
SECTION 3.5.1. Payment of Commitment Fee    40
SECTION 3.6. CIRR Guarantee Charge    40
SECTION 3.6.1. Generally    40
SECTION 3.6.2. Payment    40
SECTION 3.7. Other Fees    41
SECTION 3.8. Temporary Repayment    41
SECTION 3.9. Limit on Interest Make-Up    41
SECTION 3.10. Cancellation of CIRR Agreements    41
ARTICLE IV CERTAIN LIBO RATE, EURO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate or EURO Rate Lending Unlawful    42
SECTION 4.2. Deposits Unavailable    42
SECTION 4.3. Increased Loan Costs, etc.    43
SECTION 4.4. Funding Losses    45
SECTION 4.4.1. Indemnity    45
SECTION 4.5. Increased Capital Costs    47
SECTION 4.6. Taxes    48
SECTION 4.7. Reserve Costs    50
SECTION 4.8. Payments, Computations, etc.    51
SECTION 4.9. Replacement Lenders, etc.    52
SECTION 4.10. Sharing of Payments    53
SECTION 4.10.1. Payments to Lenders    53

SECTION 4.10.2. Redistribution of payments    53
SECTION 4.10.3. Recovering Lender's rights    53
SECTION 4.10.4. Reversal of redistribution    54
SECTION 4.10.5. Exceptions    54
SECTION 4.11. Set-off    54
SECTION 4.12. Use of Proceeds    55
SECTION 4.13. FATCA Deduction    55
SECTION 4.14. FATCA Information    55
SECTION 4.15. Resignation of the Facility Agent    57
ARTICLE V CONDITIONS TO BORROWING
SECTION 5.1. Advance of the Loan    58
SECTION 5.1.1. Resolutions, etc.    58
SECTION 5.1.2. Opinions of Counsel.    58
SECTION 5.1.3. Hermes Insurance Policy    59
SECTION 5.1.4. Closing Fees, Expenses, etc.    59
SECTION 5.1.5. Compliance with Warranties, No Default, etc.    59
SECTION 5.1.6. Loan Request    60
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations    60
SECTION 5.1.8. Pledge Agreement    60
ARTICLE VI REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Organisation, etc.    60
SECTION 6.2. Due Authorisation, Non-Contravention, etc.    61
SECTION 6.3. Government Approval, Regulation, etc.    61
SECTION 6.4. Compliance with Laws    61
SECTION 6.5. Validity, etc.    62

SECTION 6.6. No Default, Event of Default or Prepayment Event    62
SECTION 6.7. Litigation    62
SECTION 6.8. The Purchased Vessel    62
SECTION 6.9. Obligations rank pari passu    63
SECTION 6.10. Withholding, etc.    63
SECTION 6.11. No Filing, etc. Required    63
SECTION 6.12. No Immunity    63
SECTION 6.13. Investment Company Act    63
SECTION 6.14. Regulation U    63
SECTION 6.15. Accuracy of Information    64
ARTICLE VII COVENANTS
SECTION 7.1. Affirmative Covenants    64
SECTION 7.1.1. Financial Information, Reports, Notices, etc.    64
SECTION 7.1.2. Approvals and Other Consents    66
SECTION 7.1.3. Compliance with Laws, etc.    66
SECTION 7.1.4. The Purchased Vessel    67
SECTION 7.1.5. Insurance    68
SECTION 7.1.6. Books and Records    68
SECTION 7.1.7. Hermes Insurance Policy/Federal Republic of Germany Requirement    68
SECTION 7.1.8. Notice of written amendments to Construction Contract    69
SECTION 7.2. Negative Covenants    69
SECTION 7.2.1. Business Activities    69
SECTION 7.2.2. Indebtedness    69
SECTION 7.2.3. Liens    70
SECTION 7.2.4. Financial Condition    73

SECTION 7.2.5. Consolidation, Merger, etc.    73
SECTION 7.2.6. Asset Dispositions, etc.    75
SECTION 7.2.7. Construction Contract    75
SECTION 7.2.8. Additional Undertakings    75
SECTION 7.3. Limitation of in respect of Certain Representations, Warranties and Covenants    82
SECTION 7.4. Guarantor's Procurement Undertaking    82
ARTICLE VIII EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default    82
SECTION 8.1.1. Non-Payment of Obligations    82
SECTION 8.1.2. Breach of Warranty    83
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations    83
SECTION 8.1.4. Default on Other Indebtedness    83
SECTION 8.1.5. Bankruptcy, Insolvency, etc.    84
SECTION 8.2. Action if Bankruptcy    85
SECTION 8.3. Action if Other Event of Default    85
ARTICLE IX PREPAYMENT EVENTS
SECTION 9.1. Listing of Prepayment Events    85
SECTION 9.1.1. Change of Control    85
SECTION 9.1.2. Unenforceability    85
SECTION 9.1.3. Approvals    85
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations    86
SECTION 9.1.5. Judgments    86
SECTION 9.1.6. Condemnation, etc.    86
SECTION 9.1.7. Arrest    86
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel    86

SECTION 9.1.9. Delayed Delivery of the Purchased Vessel    86
SECTION 9.1.10. Termination of the Construction Contract    87
SECTION 9.1.11. Termination, etc. of the Hermes Insurance Policy    87
SECTION 9.1.12. Illegality    87
SECTION 9.1.13. Principles.    87
SECTION 9.2. Mandatory Prepayment    88
ARTICLE X THE FACILITY AGENT AND THE HERMES AGENT
SECTION 10.1. Actions    88
SECTION 10.2. Indemnity    88
SECTION 10.3. Funding Reliance, etc.    89
SECTION 10.4. Exculpation    89
SECTION 10.5. Successor    90
SECTION 10.6. Loans by the Facility Agent    91
SECTION 10.7. Credit Decisions    91
SECTION 10.8. Copies, etc.    91
SECTION 10.9. The Agents' Rights    91
SECTION 10.10. The Facility Agent's Duties    92
SECTION 10.11. Employment of Agents    92
SECTION 10.12. Distribution of Payments    92
SECTION 10.13. Reimbursement    93
SECTION 10.14. Instructions    93
SECTION 10.15. Payments    93
SECTION 10.16. "Know your customer" Checks    93
SECTION 10.17. No Fiduciary Relationship    94

ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc.    94
SECTION 11.2. Notices    95
SECTION 11.3. Payment of Costs and Expenses    96
SECTION 11.4. Indemnification    97
SECTION 11.5. Survival    98
SECTION 11.6. Severability; Independence of Obligations    98
SECTION 11.7. Headings    99
SECTION 11.8. Execution in Counterparts    99
SECTION 11.9. Third Party Rights    99
SECTION 11.10. Successors and Assigns    99
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan    99
SECTION 11.11.1. Assignments    99
SECTION 11.11.2. Participations    102
SECTION 11.11.3. Register    103
SECTION 11.12. Other Transactions    103
SECTION 11.13. Hermes Insurance Policy    103
SECTION 11.13.1. Terms of Hermes Insurance Policy    103
SECTION 11.13.2. Obligations of the Borrower    104
SECTION 11.13.3. Obligations of the Hermes Agent and the Lenders.    105
SECTION 11.14. Law and Jurisdiction    106
SECTION 11.14.1. Governing Law    106
SECTION 11.14.2. Jurisdiction    106
SECTION 11.14.3. Alternative Jurisdiction    106
SECTION 11.14.4. Service of Process    106

SECTION 11.15. Confidentiality    106
SECTION 11.16. CIRR requirements    107
SECTION 11.17. Mitigation    108
SECTION 11.18. Modification and/or discontinuation of benchmarks    109

EXHIBITS
EXHIBIT A     Form of Loan Request
EXHIBIT B-1    [INTENTIONALLY OMITTED]
EXHIBIT B-2    Form of Opinion of Liberian Counsel to Borrower
EXHIBIT B-3    Form of Opinion of English Counsel to Facility Agent and Lenders
EXHIBIT B-4     Form of Opinion of German Counsel to Facility Agent and Lenders
EXHIBIT B-5     Form of Opinion of US Tax Counsel to Lenders
EXHIBIT C     Form of Lender Assignment Agreement
EXHIBIT D     Form of Option A Refinancing Agreement
EXHIBIT E     Form of Pledge Agreement
EXHIBIT F     Form of Currency Election Notice
EXHIBIT G     Principles
EXHIBIT H     Form of Information Package
EXHIBIT I     Form of First Priority Guarantee
EXHIBIT J     Form of Second Priority Guarantee
EXHIBIT K     Form of Third Priority Guarantee
EXHIBIT L     Form of Senior Parties Subordination Agreement
EXHIBIT M     Form of Other Senior Parties Subordination Agreement

EXHIBIT N    Framework
EXHIBIT O    Debt Deferral Extension Regular Monitoring Requirements

EXHIBIT P     Replacement covenants with effect from the Security Enhancement Guarantee Release Date
EXHIBIT Q    Table of Commitments



CREDIT AGREEMENT

HULL NO. S-720 CREDIT AGREEMENT, dated as of September 19, 2019 (the "Effective Date") as amended on May 20, 2020, as further amended on July 23, 2020, as further amended and restated on December 21, 2020, as further amended and restated on March 26, 2021 and as further amended and restated on September 27, 2021 originally among Silversea Cruise Holding Ltd., a Bahamian company (the "Original Borrower"), Royal Caribbean Cruises Ltd., a Liberian corporation as original guarantor and, on and following the date of Amendment Number Three, the nominee borrower (“the Borrower”), KfW IPEX-Bank GmbH, in its capacity as agent for the Lenders referred to below in respect of CIRR and Hermes-related matters (in such capacity, the "Hermes Agent"), in its capacity as facility agent (in such capacity, the "Facility Agent"), in its capacity as sole bookrunner (in such capacity, the "Bookrunner") and in its capacity as a lender (in such capacity, together with each other Person that shall become a "Lender" in accordance with Section 11.11.1 hereof, each, individually, a "Lender" and, collectively, the "Lenders").
W I T N E S S E T H
WHEREAS:
(A)    The Original Borrower, the Borrower and Meyer Werft GmbH & Co. KG (the "Builder") have on 16 April 2019, entered into a Contract for the Construction and Sale of Hull No. S-720 (as amended from time to time, the "Construction Contract") pursuant to which the Builder has agreed to design, construct, equip, complete, sell and deliver the passenger cruise vessel bearing Builder's hull number S-720 (the "Purchased Vessel");
(B)    The Lenders have agreed to make available to the Borrower, upon the terms and conditions contained herein, a US dollar loan facility calculated on the amount (the "Maximum Loan Amount") (and being comprised of the Original Loan Amount and the Increase Loan Amount) equal to (x) eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel, as adjusted from time to time in accordance with the Construction Contract to reflect, among other adjustments, change orders, but which Contract Price shall not exceed for this purpose EUR 548,050,000 (the "Contract Price Proceeds"), plus (y) 100% of the Hermes Fee (as defined below) (the "Hermes Fee Proceeds") and being made available in the US Dollar Equivalent of that Maximum Loan Amount;
(C)    The Lenders have also agreed, upon the terms and conditions contained herein, that the loan facility up to the Maximum Loan Amount may be made available in EUR to the Borrower instead of Dollars if an election is made by the Borrower for the Loan to be denominated in EUR pursuant to Section 2.4(e);
(D)    The Contract Price Proceeds will be provided to the Borrower either two (2) Business Days prior to the anticipated Delivery Date (if the Loan is denominated in Dollars) or one (1) Business Day prior to the anticipated Delivery Date (if the Loan is denominated in EUR) for the purpose of paying a portion of the Contract Price in
Page 1
connection with the Borrower's purchase of the Purchased Vessel. The Hermes Fee Proceeds will be provided on the Disbursement Date and paid as set forth in Section 2.4(c) and (d);
(E)    The Parties hereto have previously amended this Agreement pursuant to that certain financial covenant waiver extension consent letter, dated as of July 23, 2020 (the "Waiver Letter");
(F)    The Parties hereto have previously amended and restated this Agreement pursuant to Amendment No. 1, dated as of December 21, 2020 (the "Amendment Number One") pursuant to which the Original Borrower and the Borrower agreed to procure the execution of the Security Enhancement Guarantees and to make certain amendments to this Agreement to reflect the existence of such Security Enhancement Guarantees.
(G)    Pursuant to Amendment No. 2 dated as of March 26, 2021 (the "Amendment Number Two"), the Parties agreed to further amendments to this Agreement in accordance with the Framework.
(H)    Pursuant to Amendment No. 3 dated as of September 27, 2021 (the "Amendment Number Three"), and upon satisfaction of the conditions set forth therein, this Agreement is being amended and restated in the form of this Agreement and (1) the Maximum Loan Amount is being increased to include the Increase Loan Amount to be made available by the Increase Lenders and (2) the Original Borrower has, in accordance with Section 2.6 and clause 5 of Amendment Number Three, nominated the Borrower as borrower under this Agreement and the other Loan Documents and accordingly this Agreement has been amended to reflect such nomination.
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 capitalised, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):
"Accumulated Other Comprehensive Income (Loss)" means at any date the Borrower’s accumulated other comprehensive income (loss) on such date, determined in accordance with GAAP.
“Additional Hermes Fee” means the additional premium payable to Hermes under, and in respect of, the amendment to the Hermes Insurance Policy made in connection with Amendment Number Three and the making available of the Increase Tranche.
Page 2
"Additional Guarantee" means a guarantee of the Obligations provided by a New Subsidiary Guarantor in a form and substance substantially the same as the other Security Enhancement Guarantees (reflecting any necessary logical and factual changes), with such changes, or otherwise in form and substance, reasonably satisfactory to each of the Agents.
"Additional Subordination Agreement" means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee, as applicable, in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in form and substance, reasonably satisfactory to each of the Agents and the beneficiaries of any Indebtedness incurred by the relevant Security Enhancement Guarantor, as applicable.
“Adjustable Amount” means, as of any time of determination, $500,000,000; provided if the aggregate amount of New Capital is equal to or greater than $500,000,000, then the Adjustable Amount shall be $350,000,000.
“Adjusted Cash Balance” means, as of any date (the “Measurement Date”), the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP plus (a) any amounts available to be drawn by the Borrower and/or any of its Subsidiaries under committed but undrawn term loan or revolving credit facility agreements (excluding any amounts available under agreements where the proceeds are only intended to be used to fund the purchase of new Vessels) and less (b) the sum of (i) any scheduled payments of principal or interest (but for the purposes of anticipating any interest liabilities, the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the Measurement Date) in respect of debt during the period commencing on the Measurement Date and ending on the date that is six months thereafter, (ii) any customer deposits held by the Borrower or its Subsidiaries for cruises that are scheduled to commence within three months of the Measurement Date and (iii) any planned Non-Financed Capex during the period commencing on the Measurement Date and ending on the date that is six months thereafter.
“Adjusted EBITDA after Interest” means, for any Last Reported Fiscal Quarter, the Borrower’s EBITDA for such period, excluding those items, if any, that the Borrower has excluded in determining “Adjusted Net Income” for such period as disclosed in the Borrower’s annual report on Form 10-K or quarterly report on Form 10-Q, as applicable, for such Last Reported Fiscal Quarter, as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
"Affiliate" of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be "controlled by" any other Person if such other Person possesses, directly or indirectly, power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
"Agent" means either the Hermes Agent or the Facility Agent and "Agents" means both of them.
Page 3
"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.
“Amendment Three Effective Date” has the meaning ascribed to the term “Amendment Effective Date” in Amendment Number Three.
“Amendment Two Effective Date” has the meaning ascribed to the term “Amendment Effective Date” in Amendment Number Two.
“Amendment Number One” is defined in the preamble.
“Amendment Number Three” is defined in the preamble.
“Amendment Number Two” is defined in the preamble.
“Annex VI” means Annex VI of the Protocol of 1997 (as subsequently amended from time to time) to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol), as modified by the Protocol of 1978 relating thereto.
"Anti-Corruption Laws" means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.
"Applicable Commitment Rate" means (x) from and including the Effective Date through and including 16 March 2021 (being the date falling 24 months before the anticipated Delivery Date as at the Effective Date), 0.15% per annum, (y) from and including 17 March 2021 through and including 16 March 2022 (being the date falling 12 months before the anticipated Delivery Date as at the Effective Date), 0.25% per annum, and (z) from and including 17 March 2022 through but excluding the Commitment Fee Termination Date, 0.30% per annum.
"Applicable Jurisdiction" means the jurisdiction or jurisdictions under which an Obligor is organised, 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.
"Assignee Lender" is defined in Section 11.11.1.
"Authorised Officer" means any of the officers of the Borrower authorised to act with respect to the Loan Documents and whose signatures and incumbency shall have been certified to the Facility Agent by the Secretary or an Assistant Secretary of the Borrower.
"Bank Indebtedness" means the Borrower's Indebtedness up to a maximum aggregate principal amount of $5,300,000,000 under the following agreements (as amended, restated, supplemented, extended, refinanced, replaced or otherwise modified from time to time): (a) the USD1,550,000,000 revolving credit facility maturing in 2022 with Nordea Bank AB (publ), New York Branch as agent, (b) the USD1,925,000,000 revolving credit facility maturing in 2024 with The Bank of Nova Scotia as agent, (c) the USD1,000,000,000 term loan maturing on 5 April
Page 4
2022 with Bank of America, N.A. as agent, (d) the USD300,000,000 term loan maturing on 7 June 2028 with Nordea Bank ABP, New York Branch as agent, (e) the USD55,827,065 term loan maturing on 5 December 2022 with Sumitomo Mitsui Banking Corporation as agent, (f) the €80,000,000 term loan maturing in November 2024 with Skandinaviska Enskilda Banken AB (publ) as agent, (g) the USD130,000,000 term loan maturing on 2 February 2023 with Industrial and Commercial Bank of China Limited, New York Branch as agent, (h) that certain guarantee dated 18 July 2016 with SMBC Leasing and Finance, Inc. as agent in connection with liabilities relating to the "Lease", the "Construction Agency Agreement", the "Participation Agreement" and any other "Operative Document" (as each term is defined in such guarantee) and (i) any other agreement (other than in connection with Credit Card Obligations) as to which the Second Priority Guarantors provide a first priority guarantee package.
"Bank of Nova Scotia Agreement" means the U.S. $1,925,000,000 amended and restated credit agreement dated as of December 4, 2017 among the Borrower, as borrower, the various financial institutions as are or shall become parties thereto, as lenders, and The Bank of Nova Scotia, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
"Benchmark Successor Rate" is defined in Section 11.18.
"Benchmark Successor Rate Conforming Changes" means, with respect to any proposed Benchmark Successor Rate, any conforming changes to the definition of Screen Rate, Interest Period, timing and frequency of determining rates, making payments of interest, yield protection provisions relating to the cost element of any Floating Rate Loan (including but not limited to any break costs relating to any early repayment or prepayment of any Floating Rate Loan), fallback (and market disruption) provisions for that Benchmark Successor Rate and other administrative matters as may be appropriate, in the discretion of the Facility Agent in consultation with the Borrower, to reflect the adoption of such Benchmark Successor Rate and to permit the administration thereof by the Facility Agent in a manner substantially consistent with market practice (or, if the Facility Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Benchmark Successor Rate exists, in such other manner of administration as the Facility Agent determines is reasonably necessary in connection with the administration of this Agreement).
"Borrower" is defined in the preamble.
"Builder" is defined in the preamble.
"Business Day" means any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorised or required to be closed in New York City, London or Frankfurt, and (in relation to any date for payment or purchase of EUR) any TARGET Day or if the applicable Business Day relates to an advance of all or part of the Loan, an Interest Period, prepayment or conversion, in each case with respect to the Loan bearing interest by reference to the LIBO Rate, a day on which dealings in deposits in Dollars are carried on in the London interbank market or, if an election is made for the Loan to be denominated in EUR pursuant to Section 2.4(e) by reference to the EURO Rate, a day on which dealings in deposits in EUR are carried on in the interbank market within the Participating Member States.
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"Buyer's Allowance" has the meaning assigned to "NYC Allowance" in Article II.1.1 of the Construction Contract and, when such expression is prefaced by the word "incurred", shall mean such amount of the Buyer's Allowance, not exceeding EUR 60,450,000, as shall at the relevant time have been paid, or become payable, to the Builder by the Borrower under the Construction Contract as part of the Contract Price.
"Capital Lease Obligations" means obligations of the Borrower or any Subsidiary of the Borrower under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalised leases.
"Capitalisation" means, at any date, the sum of (a) Net Debt on such date, plus (b) Stockholders' Equity on such date.
"Capitalised 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 capitalised leases, and, for purposes of this Agreement and each other Loan Document, the amount of such obligations shall be the capitalised amount thereof, determined in accordance with GAAP.
"Cash Equivalents" means all amounts other than cash that are included in the "cash and cash equivalents" shown on the Borrower's balance sheet prepared in accordance with GAAP.
"Change of Control" means, in relation to the Borrower, an event or series of events by which (A) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have "beneficial ownership" of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an "option right")), directly or indirectly, of 50% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (B) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
"Change in Law" means (a) the adoption after the date of this Agreement of any law, rule or regulation or (b) any change after the date of this Agreement in any law, rule or regulation or in the interpretation or application thereof by any governmental authority.
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"CIRR" means:    
(a)    where the Loan is denominated in Dollars:
(i)    the CIRR in respect of USD based on the OECD Arrangement for Officially Supported Export Credits and as set by KfW on behalf of the Federal Republic of Germany pursuant to section 3.4.1(c) and includes the CIRR administrative margin of 0.20% per annum and which shall, in aggregate, be equal or greater than the USD CIRR Floor; or
(ii)    where Section 3.4.1(c) applies and KfW has not set a CIRR for Dollars, the USD CIRR Cap; or
(iii)    where Section 3.4.1(b) applies, the KfW Fixed Rate for Dollars; or
(b)    where the Loan is denominated in EUR:
(i)    the CIRR in respect of EUR based on the OECD Arrangement for Officially Supported Export Credits and as set by KfW pursuant to section 3.4.1(c) and includes the CIRR administrative margin of 0.20% per annum and which shall, in aggregate, be equal to or greater than the EUR CIRR Floor; or
(ii)    where Section 3.4.1(c) applies and KfW has not set a CIRR for EUR, the EUR CIRR Cap; or
(iii)    where Section 3.4.1(b) applies, the KfW Fixed Rate for EUR.
"CIRR Agreement" means either an Option A Refinancing Agreement or an Option B Interest Make-Up Agreement
"CIRR Guarantee" means the interest make-up guarantee provided by the Federal Republic of Germany to a Lender pursuant to Section 1.1 of the Terms and Conditions.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.
"Commitment" means:
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(a)    in respect of a Lender as at the Amendment Three Effective Date, the amount set opposite that Lender’s name under the column titled “Total Commitment” in Exhibit Q and which, in the case of an Increase Lender, shall include that Lender’s Increase Commitment; and
(b)    in the case of any Lender that becomes a Lender after the Amendment Three Effective Date pursuant to an assignment pursuant to Section 11.11.1, the amount set forth as such Lender's Commitment (including any Increase Commitment (if applicable)) in the related Lender Assignment Agreement,
in each case as such amount may be reduced from time to time pursuant to Section 2.3 or reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.11.1.
"Commitment Fees" is defined in Section 3.5.
"Commitment Fee Termination Date" is defined in Section 3.5.
"Commitment Letter" means the letter dated 11 February 2019 (as amended from time to time) issued by the Facility Agent to the Original Borrower and the Borrower and which sets out the principal terms and conditions of this Agreement.
"Commitment Termination Date" means 10 February 2025.
"Construction Contract" is defined in the preamble.
"Construction Mortgage" means the first ranking shipbuilding mortgage (Hoechstbetragsschiffshypothek) in respect of the Purchased Vessel executed or to be executed by the Builder in favour of banks and financial institutions designated by the Builder to secure loans made or to be made to the Builder to finance the construction of the Purchased Vessel.
"Contract Price" is as defined in the Construction Contract and includes the Buyer's Allowance.
“Covenant Modification Date” means the later to occur of (a) the expiry of the Financial Covenant Waiver Period and (b) the date upon which the financial covenants set out in Section 7.2.4 have been modified in this Agreement in a form and substance satisfactory to Hermes, the Borrower and the Lenders.
"Covered Taxes" is defined in Section 4.6.
"Credit Card Obligations" means any obligations of the Borrower under credit card processing arrangements or other similar payment processing arrangements entered into in the ordinary course of business of the Borrower.
"DDTL Indebtedness" means the Borrower's Indebtedness (or, if such Indebtedness has not yet been incurred, the commitments by lenders to provide Indebtedness to the Borrower as of the effectiveness of the Amendment Number One) in connection with that certain Commitment
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Letter, dated as of August 12, 2020, between the Borrower and MORGAN STANLEY SENIOR FUNDING INC. (as amended, restated, extended, supplemented, refinanced, replaced or otherwise modified from time to time).
“Debt Deferral Extension Regular Monitoring Requirements" means the general test scheme/reporting package in the form set out in Exhibit O to this Agreement submitted or to be submitted (as the case may be) by the Borrower in accordance with Section 7.1.1(i).
"Debt Incurrence" means any incurrence of indebtedness for borrowed money by any Group Member, whether pursuant to a public offering or a Rule 144A or other private placement of debt securities (and including any secured debt securities (but excluding any unsecured debt securities) which are convertible into equity securities of the Borrower) or an incurrence of loans under any loan or credit facility, or any issuance of bonds, other than:
(a)    any indebtedness (but having regard, in respect of any secured and/or guaranteed indebtedness, to the restrictions set out in Section 7.2.10(b)) incurred by a Group Member between April 1, 2020 and December 31, 2022 (or such later date as may, with the prior consent of Hermes, be agreed between the Borrower and the Lenders) for the purpose of providing crisis and/or recovery-related funding;
(b)    indebtedness incurred by a Group Member pursuant to an intra-Group loan from another Group Member, provided that no Group Member shall be permitted to incur any such Indebtedness at any time where an Event of Default or a Prepayment Event has occurred and is continuing;
(c)    indebtedness incurred to refinance (and for this purpose having regard to the applicable provisions of Section 7.2.10) a maturity payment under any existing loan or credit facility (including any crisis and/or recovery-related indebtedness incurred by a Group Member between April 1, 2020 and December 31, 2022) or issued bonds of a Group Member, provided that:
(i)    in the case of any such refinancing, the amount of such indebtedness being used in connection with that refinancing does not increase the aggregate principal amount of such indebtedness or the commitments outstanding at the time of that refinancing and is otherwise incurred on a basis permitted pursuant to this Agreement (including, without limitation, in relation to the provision of any Liens or guarantees that may be provided to support the relevant refinancing arrangement); and
(ii)    in the case of the refinancing of crisis and/or recovery-related indebtedness of the type referred to above, that refinancing shall either (A) reduce the interest burden of the Borrower (and for such purposes the interest rate of any floating rate debt shall be determined based on reference rates then in effect at the time of the new debt incurrence) or (B) replace the existing secured and/or guaranteed indebtedness with unsecured and unguaranteed debt;

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(d)    indebtedness provided by banks or other financial institutions under the Borrower’s senior unsecured revolving credit facilities in an aggregate amount not greater than the commitments thereunder as in effect on 19 February 2021 plus the amount of any existing uncommitted incremental facilities (for example, any unused accordion) on such facilities;
(e)    indebtedness provided by banks or other financial institutions which, as at 19 February 2021, is committed but yet to be incurred in respect of the DDTL Indebtedness (but, in respect of that DDTL Indebtedness, up to a maximum amount of $700,000,000 or, where the Borrower has exercised the pre-existing accordion option in respect of that DDTL Indebtedness, a maximum amount of $1,000,000,000 (but on the basis that, following the exercise of that accordion option, an amount equal to the additional $300,000,000 or, if the amount of indebtedness incurred under such accordion option is less, the relevant amount made available under the DDTL Indebtedness shall be included in the overall limit on secured and/or guaranteed indebtedness set out in Section 7.2.10(b)));
(f)    any of the following types of indebtedness in each case incurred in the ordinary course of business of any Group Member:
(i)    the issuances of commercial paper;
(ii)    Capitalized Lease Liabilities;
(iii)    purchase money indebtedness;
(iv)    indebtedness under overdraft facilities; and
(v)    financial obligations in connection with repurchase agreements and/or securities lending arrangements; and
(g)    vessel financings (including the financing of pre-delivery contract installments, change orders, owner furnished equipment costs or other such similar arrangements) in respect of vessels for which shipbuilding contracts have been executed on or prior to 1 April 2020 (provided, however, that a refinancing of a vessel financing shall not be included in this carve-out (g).
There shall be a presumption that any indebtedness incurred by the Borrower between April 1, 2020 and December 31, 2022 shall be for the purpose of providing crisis and/or recovery-related funding unless the intended use of proceeds from such indebtedness are specifically identified to be used for an alternative purpose. In the event there is any question as to whether funding qualifies as "crisis and/or recovery-related", Hermes, the Facility Agent and the Borrower shall negotiate a resolution in good faith for a maximum period of fifteen (15) Business Days.
"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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"Defaulting Lender" means any Lender:
(a)    which has failed to make its participation in the Loan available (or has notified the Facility Agent or the Borrower (which has notified the Facility Agent) that it will not make its participation in the Loan available) by the Disbursement Date;
(b)    which has otherwise rescinded or repudiated a Loan Document; or
(c)    with respect to which a Lender Insolvency Event has occurred and is continuing,
unless, in the case of paragraph (a) above:
(i)    its failure to pay is caused by:
(A)    administrative or technical error; or
(B)    a Disruption Event; and
payment is made within three Business Days of its due date; or
(ii)    the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
"Delivery Date" means the date on which the Purchased Vessel is delivered by the Builder to, and accepted by, the Borrower under the Construction Contract.
"Disbursement Date" means the date on which the Loan is advanced; provided that if the Loan is re-borrowed pursuant to Section 3.8, then, for all purposes of this Agreement concerning such re-borrowed Loan, the Disbursement Date shall be the date of such re-borrowing. When such expression is prefaced by the word "expected", it shall denote the date on which the Borrower then reasonably expects the Loan to be disbursed based upon the then-scheduled Delivery Date of the Purchased Vessel.
"Dispose" means to sell, transfer, license, lease, distribute or otherwise transfer, and "Disposition" shall have a correlative meaning.
"Disruption Event" means either or both of:
(a)    a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with this loan facility (or otherwise in order for the transactions contemplated by the Loan Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties to this Agreement; or
(b)    the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a party to this Agreement preventing that, or any other party to this Agreement:

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(i)    from performing its payment obligations under the Loan Documents; or
(ii)    from communicating with other parties to this Agreement in accordance with the terms of the Loan Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party to this Agreement whose operations are disrupted.
"Dollar", "USD" and the sign "$" mean lawful money of the United States.
"Dollar Pledged Account" means the Dollar account referred to in the Pledge Agreement.
“Early Warning Monitoring Period” means the period beginning on the Amendment Two Effective Date and ending on the last day of two consecutive Fiscal Quarters where the Borrower’s Adjusted EBITDA after Interest for each such Fiscal Quarter is a positive number, as evidenced pursuant to the certificate to be submitted by the Borrower pursuant to Section 7.1.1.(l) (and such day shall be notified to the Borrower by the Facility Agent).
“EBITDA” means, for any Last Reported Fiscal Quarter, the Borrower’s consolidated operating income for such period plus any depreciation and amortization expenses that were deducted in calculating consolidated operating income for such period and minus consolidated interest expense of the Borrower for such period (net of any capitalized interest and interest income), in each case as determined in accordance with GAAP.
"ECA Financed Vessel" means any Vessel subject to any ECA Financing.
"ECA Financing" means any financing arrangement pursuant to which one or more ECA Guarantor provides guarantees or other credit support (including but not limited to a sale and leaseback transaction or bareboat charter or lease or an arrangement whereby a Vessel under construction is pledged as collateral to secure the indebtedness of a shipbuilder, and, for the avoidance of doubt, committed but undrawn export credit agency facilities), entered into by the Borrower or a Subsidiary for the purpose of financing or refinancing all or any part of the purchase price, cost of design or construction of a Vessel or Vessels or the acquisition of Equity Interests of entities owning, or to own, Vessels.
“ECA Guarantor” means BpiFrance Assurance Export, Finnvera plc or Euler Hermes Aktiengesellschaft (or, in each case, any successor thereof).
"Effective Date" is defined in the preamble.
"Election Date" means the date falling 65 days prior to the actual Disbursement Date.
"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.
"Equity Interests" means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership
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or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities) but excluding any debt securities convertible into such Equity Interests.
"EUR" and the sign "€" mean the currency of participating member states of the European Monetary Union pursuant to Council Regulation (EC) 974/98 of 3 May 1998, as amended from time to time.
"EUR CIRR Cap" means 2.70% per annum.
"EUR CIRR Floor" means the CIRR in respect of EUR at the time of signing of the Construction Contract which is equal to 0.82% per annum.
"EUR Fixed Rate Margin" means:
(a)    in respect of the Loan (but excluding the Increase Tranche), 0.45% per annum; and
(b)    in respect of the Increase Tranche, 0.65% per annum.
"EUR Floating Rate Margin" means:
(a)    in respect of the Loan (but excluding the Increase Tranche), 0.65% per annum; and
(b)    in respect of the Increase Tranche, 0.85% per annum.
"EUR Pledged Account" means the EUR account referred to in the Pledge Agreement.
"EURO Rate" means the Screen Rate offered for EUR at or about 10:00 a.m. (London time) two (2) TARGET Days before the commencement of the relevant Interest Period; provided that:
(a)    subject to Section 3.4.6, if no such offered quotation appears on Thomson Reuters EURIBOR01 Page (or any successor page) at the relevant time the EURO Rate shall be the rate per annum certified by the Facility Agent to be the average of the rates quoted by the Reference Banks as the rate at which each of the Reference Banks was (or would have been) offered deposits of EUR by prime banks in the interbank market within the Participating Member States in an amount approximately equal to the amount of the Loan and for a period of six months;
(b)    for the purposes of determining the post-maturity rate of interest under Section 3.4.4, the EURO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Facility Agent may determine after consultation with the Lenders, which period shall be no longer than one month unless the Borrower otherwise agrees; and

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(c)    if the EURO Rate determined in accordance with the foregoing provisions of this definition is less than zero, such rate shall be deemed to be zero for the purpose of this Agreement.
"Event of Default" is defined in Section 8.1.
"Existing Principal Subsidiaries" means each Subsidiary of the Borrower that is a Principal Subsidiary on the Effective Date.
"Facility Agent" is defined in the preamble and includes each other Person as shall have subsequently been appointed as the successor Facility Agent, and as shall have accepted such appointment, pursuant to Section 10.5.
"FATCA" means Sections 1471 through 1474 of the Code, as in effect at the date hereof (or any amended or successor version that is substantively comparable), any current or future regulations promulgated thereunder or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any published intergovernmental agreement entered into in connection with the implementation of such sections of the Code, any published intergovernmental agreement entered into in connection with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such published intergovernmental agreements.
"FATCA Deduction" means a deduction or withholding from a payment under a Loan Document required by FATCA.
"FATCA Exempt Party" means a party to this Agreement that is entitled to receive payments free from any FATCA Deduction.
"Fee Letter" means any letter entered into by reference to this Agreement between any or all of (a) the Facility Agent, the Initial Mandated Lead Arranger and/or, the Lenders and (b) the Original Borrower or the Borrower, setting out the amount of certain fees referred to in, or payable in connection with, this Agreement.
"Final Maturity" means the date occurring 144 months (being 12 years) after the Disbursement Date.
"Financial Covenant Waiver Period" means the period from and including April 1, 2020 to and including December 31, 2022.
"First Fee" is defined in Section 11.13.
"First Priority Assets" means the Vessels known on the date the Amendment Number One becomes effective as or that sailed under the name (i) Celebrity Constellation, (ii) Celebrity Equinox, (iii) Celebrity Millennium, (iv) Celebrity Silhouette, (v) Celebrity Summit, (vi) Celebrity Eclipse, (vii) Celebrity Infinity, (viii) Celebrity Reflection and (ix) Celebrity Solstice (it being understood that such Vessels shall remain "First Priority Assets" regardless of any change in name or ownership after such date).
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"First Priority Guarantee" means the first priority guarantee granted by the First Priority Guarantor on or prior to the date of effectiveness of Amendment Number One (and any other first priority guarantee granted by a First Priority Holdco Subsidiary in connection with becoming a First Priority Guarantor) in favour of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit H.
"First Priority Guarantor" means Celebrity Cruise Lines Inc. (and any of its successors) and any other First Priority Holdco Subsidiary that has granted or, prior to that entity becoming a First Priority Holdco Subsidiary pursuant to a Disposal of a First Priority Asset in accordance with Section 7.2.8(a)(v)(A), will grant a First Priority Guarantee.
"First Priority Holdco Subsidiaries" means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any First Priority Assets.    
"First Priority Release Event" means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of the Amendment Number One (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of the Amendment Number One (being $3,320,000,000):
(a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
(b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower.
Notwithstanding the foregoing, a First Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a First Priority Release Event would have occurred but for the continuance of the payment default described above, then a First Priority Release Event will occur immediately upon that payment default being remedied.
"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:
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(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 Capitalised Lease Liabilities), in each case, of the Borrower and its Subsidiaries for such period.
"Fixed Rate" means:
(a)    where the Loan is denominated in Dollars, a rate per annum equal to the sum of the applicable CIRR plus the relevant USD Fixed Rate Margin;
(b)    where the Loan is denominated in EUR, a rate per annum equal to the sum of the applicable CIRR plus the relevant EUR Fixed Rate Margin; and
(c)    where the Borrower has made an election under Section 3.4.1(b), the KfW Fixed Rate.
"Fixed Rate Loan" means the Loan bearing interest at the Fixed Rate, or that portion of the Loan that continues to bear interest at the Fixed Rate after the termination of any CIRR Agreement pursuant to Section 3.4.3.
"Fixed Rate Margin" means the relevant USD Fixed Rate Margin or, as the case may be, the relevant EUR Fixed Rate Margin.
"Floating Rate" means:
(a)    where the Loan is denominated in Dollars, the percentage rate per annum equal to the sum of the LIBO Rate plus the relevant USD Floating Rate Margin; and
(b)    where the Loan is denominated in EUR, the percentage rate per annum equal to the sum of the EURO Rate plus the relevant EUR Floating Rate Margin.
"Floating Rate Indemnity Amount" is defined in Section 4.4.1(a).
"Floating Rate Loan" means all or any portion of the Loan bearing interest at the Floating Rate.
"Floating Rate Margin" means the relevant USD Floating Rate Margin or, as the case may be, the relevant EUR Floating Rate Margin.

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“Framework” means the document titled “Debt Deferral Extension Framework” in the form set out in Exhibit N to this Agreement, and which sets out certain key principles and parameters and being applicable to Hermes-covered loan agreements such as this Agreement.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System or any successor thereto.
"Funding Losses Event" is defined in Section 4.4.1.
"GAAP" is defined in Section 1.5.
"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 its or their business in such Applicable Jurisdiction, excluding, in any event, any taxes imposed on the Borrower or any Subsidiary of the Borrower.
“Guarantor” is defined in the preamble.
“Group” means the Borrower and its Subsidiaries from time to time.
“Group Member” means any entity that is a member of the Group.
“Group Member Guarantee” means any guarantee or other similar or analogous credit support arrangement granted by a Group Member (other than the Borrower) in support of the Indebtedness of another Group Member or any other Person.
"Hedging Instruments" means options, caps, floors, collars, swaps, forwards, futures and any other agreements, options or instruments substantially similar thereto or any series or combination thereof used to hedge one or more interest, foreign currency or commodity exposures.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document.
"Hermes" means Euler Hermes Aktiengesellschaft, Gasstraße 27, 22761 Hamburg, Germany acting in its capacity as representative of the Federal Republic of Germany in connection with the issuance of export credit guarantees.
"Hermes Agent" is defined in the preamble.
"Hermes EUR Equivalent" means, where the Loan is to be denominated in EUR and for the calculation and reimbursement of the Hermes Fee to the Borrower in EUR, the amount thereof paid in Dollars for the First Fee and the Second Fee converted to a corresponding EUR amount as determined by Hermes on the basis of the latest rate for the purchase of Dollars with
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EUR to be published by the German Federal Ministry of Finance prior to the time that Hermes issues its invoice for the Hermes Fee.
"Hermes Fee" means, together, the Original Hermes Fee and the Additional Hermes Fee.
"Hermes Insurance Policy" means the export credit guarantee (Finanzkreditgarantie) issued by the Federal Republic of Germany, represented by Hermes, in favour of the Lenders.
"Illegality Notice" is defined in Section 3.2(b).
“Increase Commitment” means, in relation to each Increase Lender, the amount of its Commitment in respect of the Increase Loan Amount (as more particularly set out in Exhibit Q), to the extent not cancelled, reduced or assigned by it under this Agreement.
“Increase Lenders” means each New Lender (as defined in Amendment Number Three) and each other Lender which has, in accordance with Amendment Number Three, agreed to provide an Increase Commitment, and which in each case has not ceased to be a Lender in accordance with the terms of this Agreement.
“Increase Loan Amount” means the increase in the amount of the Maximum Loan Amount in an amount of up to the US Dollar Equivalent of EUR92,975,000).
“Increase Tranche” means the advance made available or to be made available (as the case may be) by the Increase Lenders in an aggregate amount not to exceed the Increase Loan Amount or, as the case may be, the aggregate outstanding amount of such advance from time to time.
"Indebtedness" means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than (i) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 180 days of the date the respective goods are delivered or the respective services are rendered and (ii) any purchase price adjustment, earnout or deferred payment of a similar nature incurred in connection with an acquisition (but only to the extent that no payment has at the time accrued pursuant to such purchase price adjustment, earnout or deferred payment obligation); (c) Indebtedness of others secured by a Lien on the property of such Person, whether or not the respective Indebtedness so secured has been assumed by such Person; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (e) Capital Lease Obligations of such Person; (f) guarantees by such Person of Indebtedness of others, up to the amount of Indebtedness so guaranteed by such Person; (g) obligations of such Person in respect of surety bonds and similar obligations; and (h) liabilities arising under Hedging Instruments.
"Indemnified Liabilities" is defined in Section 11.4.
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"Indemnified Parties" is defined in Section 11.4.
"Information Package" means the general test scheme/information package in connection with the application for a debt holiday in the form of Exhibit G hereto submitted or to be submitted (as the case may be) by the Borrower in order to obtain the benefit of the measures provided for in the Principles for the purpose of this Agreement and certain of its obligations under this Agreement.
"Interest Period" means the period from and including the Disbursement Date up to and including the first Repayment Date, and subsequently each succeeding period from and including the last day of the prior Interest Period up to and including the next Repayment Date, except that:
(a)    any Interest Period which would otherwise end on a day which is not a Business Day shall end on the next Business Day to occur, except if such Business Day does not fall in the same calendar month, the Interest Period will end on the last Business Day in that calendar month, the interest amount due in respect of the Interest Period in question and in respect of the next following Interest Period being adjusted accordingly;
(b)    if any Interest Period is altered by the application of a) above, the subsequent Interest Period shall end on the day on which it would have ended if the preceding Interest Period had not been so altered; and
(c)    where Section 3.4.2(c) applies, the Interest Period shall, but still having regard to the above provisions, be determined in accordance with Section 3.4.2(c).
"Investment Grade" means, with respect to Moody's, a Senior Debt Rating of Baa3 or better and, with respect to S&P, a Senior Debt Rating of BBB- or better.
"KfW" means KfW of Palmengartenstraße 5-9, 60325 Frankfurt am Main, Germany, in its capacities as (a) the mandated CIRR provider on behalf of the government of the Federal Republic of Germany (represented by the Federal Ministry of Economic Affairs and Energy and the Federal Ministry of Finance) or (b) as refinancing bank with respect to the Option A Refinancing Agreements, in each case with KfW in turn being represented by KfW IPEX or (c) in relation to Section 11.11.1(i) in its capacity as an Affiliate of KfW IPEX.
"KfW Fixed Rate" is defined in Section 3.4.1(b).
"KfW IPEX" means KfW IPEX-Bank GmbH.
“Last Reported Fiscal Quarter(s)” means the most recently completed Fiscal Quarter(s) for which the Borrower has filed financial statements with the SEC as part of an annual report on Form 10-Q or a quarterly report on Form 10-Q.
"Latest Date" has the meaning given to such term in Section 7.2 of the Terms and Conditions.

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"Lender" and "Lenders" are defined in the preamble, and shall, from the Amendment Three Effective Date, include each New Lender.
"Lender Assignment Agreement" means any Lender Assignment Agreement substantially in the form of Exhibit C.
"Lender Insolvency Event" means, in relation to a Lender, the appointment of a liquidator, receiver, administrative receiver, examiner, administrator, compulsory manager or other similar officer in respect of that Lender or all or substantially all of that Lender's assets or any analogous procedure or step being taken in any jurisdiction with respect to that Lender.
"Lending Office" means, relative to any Lender, the office of such Lender designated as such below its signature hereto or designated in a Lender Assignment Agreement or such other office of a Lender as designated from time to time by notice from such Lender to the Borrower and the Facility Agent, whether or not outside the United States, which shall be making or maintaining the Loan of such Lender hereunder.
"LIBO Rate" means the Screen Rate for Dollars (having regard to Section 3.4.2(c)) at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period; provided that:
(a)    subject to Section 3.4.6, if no such rate appears on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any such replacement page) at the relevant time, the LIBO Rate shall be the rate per annum certified by the Facility Agent to be the average of the rates quoted by the Reference Banks as the rate at which each of the Reference Banks was (or would have been) offered deposits of Dollars by prime banks in the London interbank market in an amount approximately equal to the amount of the Loan and for a period of six months, as applicable;
(b)    for the purposes of determining the post-maturity rate of interest under Section 3.4.4, the LIBO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Facility Agent may determine after consultation with the Lenders, which period shall be no longer than one month unless the Borrower otherwise agrees; and
(c)    if the LIBO Rate determined in accordance with the foregoing provisions of this definition is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
"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" means the principal sum in Dollars, not exceeding the US Dollar Maximum Loan Amount or, as the case may be, in EUR, not exceeding the Maximum Loan Amount (and for this purpose including the amount of the Increase Tranche) if an election is made for the Loan to be
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denominated in EUR pursuant to Section 2.4(e), advanced by the Lenders to the Borrower upon the terms and conditions of this Agreement or (as the context may require) the amount thereof for the time being advanced and outstanding under this Agreement.
"Loan Documents" means this Agreement, the Waiver Letter, Amendment Number One, Amendment Number Two, Amendment Number Three, the Pledge Agreement, the Fee Letters, the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee, any Additional Guarantee, the Security Enhancement Guarantor Confirmation Agreement, the Subordination Agreements, any Additional Subordination Agreement and any New Subsidiary Guarantor Subordination Agreement and any other document jointly designated as a "Loan Document" by the Facility Agent, the Borrower or, prior to the date of Amendment Number Three, the Original Borrower.
"Loan Request" means the loan request and certificate duly executed by an Authorised Officer of the Borrower, substantially in the form of Exhibit A hereto.
"Margin" means the relevant Fixed Rate Margin and/or (as the context requires hereunder) the relevant Floating Rate Margin.
"Material Adverse Effect" means a material adverse effect on (a) the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of the Facility Agent or any Lender under the Loan Documents or (c) the ability of any Obligor to perform its payment Obligations under the Loan Documents to which it is a party.
"Material Subsidiary Guarantor" means (i) each of Celebrity Cruise Lines Inc., RCI Holdings LLC, RCL Cruise Holdings LLC and RCL Cruises Ltd (and each of their respective successors) and (ii) any other entity that becomes a First Priority Guarantor, a Second Priority Guarantor or a Third Priority Guarantor after the effectiveness of the Amendment Number One.
"Material Litigation" is defined in Section 6.7.
"Maximum Loan Amount" is defined in the preamble.
"Mitigation Period" is defined in Section 11.17(a).
“Monthly Outflow” means, in respect of each monthly period, the quotient obtained by dividing:
a)    the sum of (i) Total Cruise Operating Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (ii) Marketing, Selling and Administrative Expenses (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter and (iii) Interest Expense, net of Interest Capitalized (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter minus (x) Interest Income (as determined in accordance with GAAP) for the Last Reported Fiscal Quarter, (y) any non-cash charges or impairments included in the calculation of Total Cruise Operating Expenses or Marketing, Selling and Administrative Expenses pursuant to sub-clause (i) or (ii) of this definition and (z) any loss on extinguishment of debt included in
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Interest Expenses, net of Interest Capitalized (as each such capitalized expression is defined or referenced in the financial statements of the Borrower); by
b)    three,
as evidenced pursuant to the relevant certificate to be submitted by the Borrower pursuant to Section 7.1.1(l).
"Moody's" means Moody's Investors Service Inc.
"Net Debt" means, at any time, the aggregate outstanding principal amount of all debt (including, without limitation, the principal portion of all Capitalised Lease Obligations and excluding, for the avoidance of doubt, operating lease liabilities) of the Borrower and its Subsidiaries (determined on a consolidated basis in accordance with GAAP) less the sum of (without duplication);
(a)    all cash on hand of the Borrower and its Subsidiaries; plus
(b)    all Cash Equivalents.
"Net Debt to Capitalisation Ratio" means, as at any date, the ratio of (a) Net Debt on such date to (b) Capitalisation on such date.
“New Capital” means the aggregate gross amount of proceeds from any capital (whether in the form of debt, equity or otherwise) raised by the Borrower or any of its Subsidiaries in one or a series of financings after January 1, 2021 (including (a) amounts borrowed (that were previously undrawn) under committed term loan facilities existing as of such date and (b) indebtedness borrowed in lieu of the committed term loan facilities described in the foregoing clause (a) if the incurrence of such indebtedness results in a reduction or termination of such commitments); provided that proceeds of any capital raise which are used substantially concurrently for (i) the purchase price of a new Vessel or (ii) repayment of existing Indebtedness (other than Indebtedness (A) maturing no later than the end of the first full calendar year following the date of such repayment or (B) under any revolving credit agreement the repayment of which is not accompanied by a corresponding permanent reduction in the related revolving credit commitments), in each case, shall not constitute New Capital.
"New Financings" means proceeds from:
(a)    borrowed money (whether by loan or issuance and sale of debt securities), including drawings under this Agreement and any revolving credit facilities, and
(b)    the issuance and sale of equity securities.
"New Subsidiary Guarantor" means, with respect to any Vessel delivered after the effectiveness of Amendment Number One, the Subsidiary of the Borrower that (a) directly owns the Equity Interests of the Principal Subsidiary that acquired such Vessel and (b) delivers an Additional Guarantee.
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"New Subsidiary Guarantor Subordination Agreement" means a subordination agreement pursuant to which the Lenders' rights under the applicable Additional Guarantee will be fully subordinated in right of payment to the rights of the beneficiaries of the applicable Senior Guarantee, which subordination agreement shall be in a form and substance substantially the same as the other Subordination Agreements (reflecting any necessary logical and factual changes), with such changes, or otherwise in a form and substance, reasonably acceptable to the Facility Agent and the agent, trustee or other representative for such Senior Guarantee.
"Non-Guarantor Related Change in Law" means a Change in Law other than a Change in Law that (a) specifically relates to the Borrower or (b) relates to companies that are organized under the law of the jurisdiction of organization or place of residence of the Borrower (but not to borrowers generally).
“Non-Financed Capex” means, with respect to any period, (a) the aggregate amount of purchases of property (including Vessels) and equipment by the Borrower and its Subsidiaries during such period as determined in good faith by the Borrower minus (b) the aggregate amount of committed financing available to be drawn during such period to fund any such purchases of property and equipment.
"Nordea Agreement" means the U.S.$1,150,000,000 amended and restated credit agreement dated as of October 12, 2017, among the Borrower, as the borrower, the various financial institutions as are or shall become parties thereto and Nordea Bank AB (publ), New York Branch as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
"Obligations" means all obligations (payment or otherwise) of the Obligors arising under or in connection with this Agreement.
"Obligors" means (a) prior to the date of Amendment Number Three, the Borrower, the Original Borrower and the Security Enhancement Guarantors and (b) on and following the date of Amendment Number Three, the Borrower and the Security Enhancement Guarantors only.
"Option A Refinancing Agreement" means a refinancing agreement entered into between KfW and any Lender pursuant to Section 1.2.1 of the Terms and Conditions, substantially in the form of Exhibit D hereto.
"Option A Lender" means each Lender that has executed an Option A Refinancing Agreement.
"Option B Interest Make-Up Agreement" means an interest make-up agreement entered into between KfW and any Lender pursuant to Section 1.2.2 of the Terms and Conditions.
"Option B Lender" means each Lender that has executed an Option B Interest Make-Up Agreement.
"Option Period" is defined in Section 3.2(d).
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"Organic Document" means, relative to each Obligor, its articles of incorporation (inclusive of any articles of amendment to its articles of incorporation) and its by-laws or other applicable constitutional documents.
“Original Hermes Fee” means the premium payable to Hermes under and in respect of the Hermes Insurance Policy with respect to the Original Loan Amount.
“Original Loan Amount” means the Maximum Loan Amount immediately prior to the Amendment Three Effective Date under Amendment Number Three (and being up to the US Dollar Equivalent of EUR351,580,000).
"Other ECA Parties" means the facility agents acting on behalf of the creditors under any ECA Financing, whether existing on or after the effectiveness of Amendment Number One (excluding the Facility Agent acting in any representative capacity in connection with this Agreement).
"Other Guarantees" means the guarantees issued, or to be issued, by any of the First Priority Guarantor, the Second Priority Guarantors, the Third Priority Guarantor or any New Subsidiary Guarantor in favour of any Other ECA Party; provided that any Other Guarantee issued by (a) the First Priority Guarantor shall be pari passu in right of payment with the First Priority Guarantee, (b) any Second Priority Guarantor shall be pari passu (or junior) in right of payment with the Second Priority Guarantee, (c) the Third Priority Guarantor shall be pari passu (or junior) in right of payment with the Third Priority Guarantee and (d) any New Subsidiary Guarantor shall be pari passu in right of payment with each Additional Guarantee issued by such New Subsidiary Guarantor.
"Other Senior Parties" means each agent, trustee or other representative in respect of Bank Indebtedness or Credit Card Obligations.
“Pari Passu Creditor” means with respect to any Group Member, any creditor under or in respect of any Indebtedness incurred by such Group Member (including in respect of any ECA Financing) which is not, as at December 31, 2020, secured by a Lien over a Vessel or which, at any time (whether pursuant to the operation of Section 7.1.10(d) or otherwise), shares in the same security and/or guarantee package as the Lenders.
"Participant" is defined in Section 11.11.2.
"Participant Register" is defined in Section 11.11.2.
"Participating Member State" means any member state of the European Union that has
EUR as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
"Percentage" means, relative to any Lender, the percentage set forth opposite its signature hereto or as set out in the applicable Lender Assignment Agreement, as such percentage may be adjusted from time to time pursuant to Section 4.9 or pursuant to Lender Assignment
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Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered pursuant to Section 11.11.1.
"Permitted Refinancing" means, in respect of any Indebtedness or commitments outstanding at the time of such Permitted Refinancing, any amendment, restatement, extension, renewal, refinancing or replacement that does not increase the aggregate principal amount of such Indebtedness or commitments outstanding at the time of such Permitted Refinancing other than by the amount of unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses associated with such amendment, restatement, supplement, refinancing or other modification.
"Person" means any natural person, corporation, limited liability company, partnership, firm, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity.
"Pledge Agreement" means a pledge agreement substantially in the form of Exhibit E.
"Pledged Accounts" means the EUR Pledged Account and the Dollar Pledged Account and "Pledged Account" means either of them.
“Poseidon Principles” means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published in June 2019 as the same may be amended or replaced to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organisation from time to time.
"Prepayment Event" is defined in Section 9.1.
"Principal Subsidiary" means any Subsidiary of the Borrower that owns a Vessel.
"Principles" means the document titled "Cruise Debt Holiday Principles" and dated March 26, 2020 in the form of Exhibit F hereto which sets out certain key principles and parameters relating to, amongst other things, the temporary suspension of repayments of principal in connection with certain qualifying Loan Agreements (as defined therein) and being applicable to Hermes-covered loan agreements such as this Agreement.
"Purchase Price" means, with respect to any Vessel, the book value of such Vessel at the time initially acquired by a Principal Subsidiary.
"Purchased Vessel" is defined in the preamble.
"Reference Banks" means, if the LIBO Rate or, as the case may be, EURO Rate for any Interest Period cannot be determined pursuant to paragraph (a) of the definition of "LIBO Rate" or, as the case may be, "EURO Rate", those banks designated as Reference Banks by the Facility Agent from time to time that are reasonably acceptable to the Borrower, and each additional Reference Bank and/or each replacement Reference Bank appointed by the Facility Agent pursuant to Section 3.4.6.

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"Register" is defined in Section 11.11.3.
"Repayment Date" means each of the dates for payment of the repayment instalments of the Loan pursuant to Section 3.1.
"Required Lenders" means, at any time, Lenders that in the aggregate, hold more than 50% of the aggregate unpaid principal amount of the Loan or, if no such principal amount is then outstanding, Lenders that in the aggregate have more than 50% of the Commitments.
“Restricted Credit Enhancement” means any Group Member Guarantee, Lien or other security or other similar or analogous credit support arrangement granted by a Group Member in respect of any Indebtedness of a Group Member.
“Restricted Loan Arrangement” means any loan or credit (including any seller’s credit granted in connection with the sale of a Vessel or other assets (and providing that any such sale complies with the provisions of Section 9.1.13(c))) made available by a Group Member to any Person but excluding any such loan or credit that is provided:
(a)    to another Group Member:
(b)    to a Person in respect of which the Borrower or any Subsidiary holds Equity Interests;
(c)    in circumstances where the relevant credit is a seller’s credit granted by that Group Member in the ordinary course of industry business and consistent with past practice; or
(d)    in circumstances where the relevant credit is otherwise in the ordinary course of business and/or consistent with past practice (it being agreed that any loans provided by the Group to its travel agents, vendors or customers to assist the Group during the crisis and/or recovery will be considered in the ordinary course of business) and where the aggregate amount of such credit referred to in this paragraph (d) does not exceed $100,000,000 (or its equivalent in any other currency) at any relevant time,
provided that no Group Member shall be permitted to make or grant any new loan or other credit (or make any further advances in respect of any existing loan or other credit) of any kind to any Person at any time where an Event of Default or a Prepayment Event has occurred and is continuing. It is agreed that for the purpose of this definition “credit” shall not include any short term trade and/or operational receivables owing to a Group Member by a Person who is not a Group Member and which are created or arise in the ordinary course of business.
“Restricted Payments” means any dividend or other distribution (whether in cash, securities or other property (other than Equity Interests)), with respect to any Equity Interests in the Borrower, or any payment (whether in cash, securities or other property (other than Equity Interests)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrower.
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“Restricted Voluntary Prepayment” means, in respect of any Indebtedness for borrowed money of any Group Member, the relevant Group Member elects to prepay, repay or redeem that Indebtedness prior to its scheduled maturity date other than:
(a)    any Indebtedness incurred (i) prior to March 1, 2020 or (ii) between March 1, 2020 and December 31, 2022 (but for this purpose excluding Indebtedness incurred pursuant to an ECA Financing) and whether pursuant to an amendment and extension of the agreements evidencing such Indebtedness and/or using proceeds raised by any Group Member in connection with any issuance of capital (whether in the form of Indebtedness for borrowed money, equity or otherwise but, in the case of any Indebtedness, subject to that Indebtedness being incurred in compliance with the carve-out provision set out in paragraph (c) of the definition of Debt Incurrence) or pursuant to the exercise of the equity claw feature in the Secured Note Indenture;
(b)    pursuant to a voluntary repayment under a revolving credit facility that does not result in the permanent reduction of the relevant revolving credit commitments under that revolving credit facility; and/or
(c)    where such prepayment, repayment or redemption is made solely for the purpose of avoiding an event of default or acceleration under the terms of the facility agreement in respect of the relevant Indebtedness,
and provided that in the case of each of paragraph (a) to (c) above, in no circumstances shall a Group Member apply excess cash in prepayment, repayment or redemption of any such Indebtedness under any ‘cash sweep’ mechanism or similar prepayment provision (and if excess cash is used in this manner in connection with any such prepayment, repayment or redemption the carve out above shall not apply).
"S&P" means Standard & Poor's Financial Services LLC, currently a wholly-owned subsidiary of The McGraw Hill Financial Inc.
"Sanctioned Country" means, at any time, a country, region or territory which is itself the subject or target of any Sanctions.
"Sanctioned Person" means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state, or any person owned or controlled by any such Person or Persons, or (b) any Person operating or organised in a Sanctioned Country.
"Sanctions" means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty's Treasury of the United Kingdom.
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"Scheduled Unavailability Date" means where the administrator of the Screen Rate or a governmental authority having jurisdiction over the Facility Agent has made a public statement identifying a specific date after which the Screen Rate shall no longer be made available, or used for determining the interest rate of loans, that specific date.
"Screen Rate" means:
(a)    in relation to Dollars, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for US Dollars for the relevant period displayed on page LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and
(b)    in relation to EUR, the euro interbank offered rate administered by the Banking Federation of the European Union (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate),
or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.
"Screen Rate Replacement Event" means:
(a)    if the Facility Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Facility Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i)    adequate and reasonable means do not exist for ascertaining the LIBO Rate or, as the case may be, the EURO Rate for any requested Interest Period, including, without limitation, because the Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii)    a Scheduled Unavailability Date has occurred; or
(iii)    syndicated loans currently being executed, or that include language similar to that contained in this definition, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate or, as the case may be, the EURO Rate; or
(b)    in the opinion of the Facility Agent and the Borrower, that Screen Rate is no longer appropriate for the purposes of calculating interest under this Agreement, including, but not limited to, as a result of (A) a substantial change in the economic characteristics or method of calculation of the Screen Rate, (B) any
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withdrawal of the administrator's right to publish the Screen Rate or (C) any prohibition for financial institutions to use the Screen Rate.
"SEC" means the United States Securities and Exchange Commission and any successor thereto.
"Second Fee" is defined in Section 11.13.
"Second Priority Assets" means the Vessels known on the date Amendment Number One becomes effective as or that sailed under the name (i) Azamara Quest, (ii) Azamara Pursuit, (iii) Azamara Journey, (iv) Celebrity Edge, (v) Celebrity Apex, (vi) Celebrity Flora, (vii) Celebrity Xpedition, (viii) Celebrity Xperience, (ix) Celebrity Xploration, (x) Monarch, (xi) Horizon and (xii) Sovereign (it being understood that such Vessels shall remain "Second Priority Assets" regardless of any change in name or ownership after such date).
"Second Priority Guarantee" means the second priority guarantee granted by the Second Priority Guarantors on or prior to the effectiveness of Amendment Number One (and any other second priority guarantee granted by a Second Priority Holdco Subsidiary in connection with becoming a Second Priority Guarantor) in favour of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit I.
"Second Priority Guarantors" means RCL Cruise Holdings LLC, Torcatt Enterprises Limitada, RCL Holdings Cooperatief UA, RCL Cruises Ltd and RCL Investments Ltd (and any of their respective successors) and any other Second Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Second Priority Holdco Subsidiary pursuant to a Disposal of a Second Priority Asset in accordance with Section 7.2.8(b)(iii)(A), will grant a Second Priority Guarantee.
"Second Priority Holdco Subsidiaries" means (a) RCL Cruises Ltd. or any other Subsidiaries of the Borrower that directly own all of the Equity Interests in (i) RCL TUI Cruises German Verwaltungs GmbH and (ii) RCL TUI Cruises German Holding GmbH & Co. KG and (b) one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Second Priority Asset. For the avoidance of doubt, Second Priority Holdco Subsidiaries shall not include any Principal Subsidiary.
"Second Priority Release Event" means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of Amendment Number One (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Secured Note Indebtedness outstanding as of the effectiveness of Amendment Number One (being $3,320,000,000):
(a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and

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(b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Second Priority Guarantors in respect of the Bank Indebtedness.
Notwithstanding the foregoing, a Second Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Second Priority Release Event would have occurred but for the continuance of the payment default described above, then a Second Priority Release Event will occur immediately upon that payment default being remedied.
"Secured Note Indebtedness" means the Borrower's Indebtedness under the Secured Note Indenture.
"Secured Note Indenture" means that certain Indenture, dated as of May 19, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time), in respect of the $1,000,000,000 10.875% senior secured notes due 2023 and $2,320,000,000 11.50% senior secured notes due 2025, by and among the Borrower, as issuer, the guarantors party thereto from time to time, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee and as security agent.
"Security Enhancement Guarantee" means the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee and (if applicable) any Additional Guarantee and "Security Enhancement Guarantees" means any or all of them.
“Security Enhancement Guarantee Release Date” means the date upon which the First Priority Release Event, the Second Priority Release Event and the Third Priority Release Event have all occurred and accordingly, subject to Section 7.2.8(g) (and in particular proviso (2) to such Section 7.2.8(g)), each of the Security Enhancement Guarantees has been released by the Facility Agent, and also being the date upon which, in accordance with Section 7.3, certain provisions of this Agreement shall be replaced by the provisions set out in Exhibit P.
"Security Enhancement Guarantor" means the provider of any Security Enhancement Guarantee from time to time and "Security Enhancement Guarantors" means any or all of them.
“Security Enhancement Guarantor Confirmation Agreement” has the meaning given to it in Amendment Number Three.
"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
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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).
"Senior Guarantee" means any guarantee by a New Subsidiary Guarantor of Indebtedness incurred by the Borrower or any of its Subsidiaries after the effectiveness of Amendment Number One; provided that the aggregate principal amount of Indebtedness guaranteed under any Senior Guarantee shall in no case exceed 10.0% of the Purchase Price of the relevant Vessel owned by the Principal Subsidiary of such New Subsidiary Guarantor that acquired such Vessel.
"Senior Parties" means each agent, trustee or other representative in respect of Unsecured Note Indebtedness or DDTL Indebtedness.
“Statement of Compliance” means a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.
"Stockholders' Equity" means, as at any date, the Borrower's stockholders' equity on such date, excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP, provided that any non-cash charge to Stockholders' Equity resulting (directly or indirectly) from a change after the 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.
"Subordination Agreement" means any subordination agreement with respect to the Second Priority Guarantee or the Third Priority Guarantee executed by the Facility Agent and any of the Senior Parties or Other Senior Parties.
"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.
"TARGET Day" means any day on which TARGET2 (the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007) is open for the settlement of payments in EUR.
"Terms and Conditions" means the general terms and conditions for CIRR Interest Make-Up in Ship Financing Schemes issued by the Federal Republic of Germany on February 7, 2018.
"Third Priority Assets" means the Vessels known on the date Amendment Number One becomes effective as (i) Symphony of the Seas, (ii) Oasis of the Seas, (iii) Harmony of the Seas, (iv) Spectrum of the Seas, (v) Quantum of the Seas, (vi) Ovation of the Seas and (vii) Anthem of the Seas (it being understood that such Vessels shall remain "Third Priority Assets" regardless of any change in name or ownership after the such date).
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"Third Priority Guarantee" means the third priority guarantee granted by RCI Holdings LLC on or prior to the effectiveness of Amendment Number One and any other third priority guarantee granted by a Third Priority Holdco Subsidiary in connection with becoming a Third Priority Guarantor) in favour of the Facility Agent for the benefit of the Agents and the Lenders, in each case substantially in the form attached hereto as Exhibit J.
"Third Priority Guarantor" means RCI Holdings LLC (and any of its successors) and any other Third Priority Holdco Subsidiary that has granted or, prior to that entity becoming a Third Priority Holdco Subsidiary pursuant to a Disposal of a Third Priority Asset in accordance with Section 7.2.8(c)(iii)(A), will grant a Third Priority Guarantee.
"Third Priority Holdco Subsidiaries" means one or more Subsidiaries of the Borrower that directly own any of the Equity Interests issued by any other Subsidiary of the Borrower that owns any Third Priority Asset.
"Third Priority Release Event" means the occurrence of any event or other circumstance that results in either (x) 80% of the aggregate principal amount of Bank Indebtedness outstanding as of the effectiveness of Amendment Number One (being $5,300,000,000 (and 80% of which is $4,240,000,000)) or (y) 100% of the aggregate principal amount of Unsecured Note Indebtedness and the DDTL Indebtedness outstanding as of the effectiveness of Amendment Number One (being, in aggregate, $1,700,000,000):
(a)    no longer remaining outstanding (whether as a result of repayment, redemption or otherwise (but excluding in connection with any enforcement action taken by the relevant creditors in respect of that Indebtedness)); and
(b)    not having been refinanced (whether initially or through subsequent refinancings) with Indebtedness that is (i) secured by a Lien or (ii) incurred or guaranteed by any one or more Subsidiaries of the Borrower,
and which, in the case of (y) above, has resulted in the release of (or will result in the substantially simultaneous release of) each guarantee granted by the Third Priority Guarantor in respect of the Unsecured Note Indebtedness, the DDTL Indebtedness and the Bank Indebtedness.
Notwithstanding the foregoing, a Third Priority Release Event shall in no case occur if the Borrower has failed to pay any Indebtedness that is outstanding under any ECA Financing (including this Agreement) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise). For the avoidance of doubt, if a Third Priority Release Event would have occurred but for the continuance of the payment default described above, then a Third Priority Release Event will occur immediately upon that payment default being remedied.
"United States" or "U.S." means the United States of America, its fifty States and the District of Columbia.
"Unsecured Note Indebtedness" means the Borrower's Indebtedness under the Unsecured Note Indenture.
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"Unsecured Note Indenture" means that certain Indenture, dated as of June 9, 2020 (as amended, supplemented, extended, refinanced, replaced and/or otherwise modified from time to time) in respect of the $1,000,000,000 9.125% senior notes due 2023, by and among the Borrower, as issuer, the guarantors party thereto, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee.
"US Dollar Equivalent" means:
(a)    for the EUR amount payable in respect of the final (delivery) instalment of the Contract Price (excluding the portion thereof comprising the Buyer's Allowance), the total of such EUR amount converted to a corresponding Dollar amount as determined using the weighted average rate of exchange that the Borrower has agreed, either in the spot or forward currency markets, to pay its counterparties for the purchase of the relevant amount of EUR with Dollars for the payment of that final instalment of the Contract Price and including in such weighted average the spot rates for any EUR amounts due that have not been hedged by the Borrower; and
(b)    for all EUR amounts payable in respect of the Buyer's Allowance, the total of such EUR amounts converted to a corresponding Dollar amount as determined using the USD-to-EUR rate used by the Borrower to convert the relevant USD amount of the amount of the Buyer's Allowance into EUR for the purpose of the Builder invoicing the same to the Borrower in EUR in accordance with the Construction Contract.
Such rate of exchange under (a) above (whether forward or spot) shall be evidenced by foreign exchange counterparty confirmations. The US Dollar Equivalent of the portion of the Maximum Loan Amount under (a) above shall be calculated by the Borrower in consultation with the Facility Agent no less than three (3) Business Days prior to the proposed Disbursement Date, except where the Borrower elects the KfW Fixed Rate under Section 3.4.1(b), the US Dollar Equivalent shall be calculated at the same time as such KfW Fixed Rate. Such rate of exchange under (b) above shall be evidenced by the production prior to the Disbursement Date of the invoice from or on behalf of the Borrower to the Builder in respect of the Buyer's Allowance, which invoice shall contain the USD/EUR exchange rate used for determining the EUR amount of the Buyer's Allowance. The US Dollar amount of the Hermes Fee shall be calculated by Hermes and notified by the Facility Agent in writing to the Borrower as soon as practicable after Hermes issues its invoice therefor.
"US Dollar Maximum Loan Amount" means the US Dollar Equivalent of the Maximum Loan Amount.
"USD CIRR Cap" means 3.55% per annum.
"USD CIRR Floor" means the CIRR in respect of USD at the time of signing of the Construction Contract which is equal to 3.47% per annum.
"USD Fixed Rate Margin" means:
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(a)    in respect of the Loan (but excluding the Increase Tranche), 0.63% per annum; and
(b)    in respect of the Increase Tranche, 0.83% per annum.
"USD Floating Rate Margin" means:
(a)    in respect of the Loan (but excluding the Increase Tranche), 0.83% per annum; and
(b)    in respect of the Increase Tranche, 1.03% per annum.
"US Tax Obligor" means the Borrower, to the extent that it is resident for tax purposes in the U.S.
“Vessel” means a passenger cruise vessel owned by a Group Member.
SECTION 1.2. Use of Defined Terms; Other Definitional Provisions
(a)    Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall, when capitalised, have such meanings when used in each Loan Request and each notice and other communication delivered from time to time in connection with this Agreement or any other Loan Document.
(b)    "month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
i.    if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in the calendar month in which that period is to end (if there is one) or on the immediately preceding Business Day (if there is not);
ii.    if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
iii.    if a period begins on the last Business Day of a calendar month, that period shall end on the last Business Day in the calendar month in which that period is to end.
(c)    Any reference to a Loan Document or any other agreement or instrument is a reference to that Loan Document or other agreement or instrument as it may from time to time be amended, restated, novated or replaced, however fundamentally and, in respect of the First Priority Guarantee, the Second Priority Guarantee, the Third Priority Guarantee, any Additional Guarantee, as also amended by the Security Enhancement Guarantor Confirmation Agreement 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
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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 1.3. Application of this Agreement to KfW IPEX as an Option A Lender
The parties to this Agreement are aware that KfW IPEX will not enter into an Option A Refinancing Agreement with KfW. However, for the purposes of this Agreement, KfW IPEX will be deemed to have entered into an Option A Refinancing Agreement with KfW in the form of Exhibit D. Consequently, any reference to an Option A Lender shall include KfW IPEX and any reference to an Option A Refinancing Agreement shall include the Option A Refinancing Agreement deemed to have been entered into by KfW IPEX.
SECTION 1.4. Accounting and Financial Determinations
Unless otherwise specified, all accounting terms used herein or in any other Loan Document shall be interpreted, all accounting determinations and computations hereunder or thereunder (including under Section 7.2.4) shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with United States generally accepted accounting principles ("GAAP") consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies); provided that if the Borrower elects to apply or is required to apply International Financial Reporting Standards ("IFRS") accounting principles in lieu of GAAP, upon any such election and notice to the Facility Agent, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided further that if, as a result of (i) any change in GAAP or IFRS or in the interpretation thereof or (ii) the application by the Borrower of IFRS in lieu of GAAP, in each case, after the date of the financial statements referred to in Section 6.15, there is a change in the manner of determining any of the items referred to herein or therein that are to be determined by reference to GAAP, and the effect of such change would (in the reasonable opinion of the Borrower or the Facility Agent) be such as to affect the basis or efficacy of the financial covenants contained in Section 7.2.4 in ascertaining the consolidated financial condition of the Borrower and its Subsidiaries and the Borrower notifies the Facility Agent that the Borrower requests an amendment to any provision hereof to eliminate such change occurring after the date hereof in GAAP or the application thereof on the operation of such provision (or if the Facility Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), then such item shall for the purposes of such Sections of this Agreement continue to be determined in accordance with GAAP relating thereto as if GAAP were applied immediately prior to such change in GAAP or in the interpretation thereof until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding the foregoing, all obligations of any person that are or would be characterized as operating lease obligations in accordance with GAAP as in effect on 31 December 2018 (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations for the purposes of this Agreement regardless of any change in GAAP on or following 31 December 2018 that would otherwise require such obligations to be recharacterized (on a prospective or retroactive basis or otherwise) as capitalized leases; provided that, for clarification purposes, operating leases recorded as
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liabilities on the balance sheet due to a change in accounting treatment, or otherwise, shall for all purposes not be counted as Indebtedness, Capital Lease Obligations or Capitalised Lease Liabilities.
SECTION 1.5. Contractual Recognition of Bail-In
Notwithstanding any other term of any Loan Document or any other agreement, arrangement or understanding between the parties to this Agreement, each such party acknowledges and accepts that any liability of any party to this Agreement to any other party to this Agreement under or in connection with the Loan Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
(a)    any Bail-In Action in relation to any such liability, including (without limitation):
i.    a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
ii.    a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
iii.    a cancellation of any such liability; and
(b)    a variation of any term of any Loan Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
In this Section 1.6:
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
"Bail-In Action" means the exercise of any Write-down and Conversion Powers.
"Bail-In Legislation" means:
(a)    in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time;
(b)    in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation; and
(c)    in relation to the United Kingdom, the UK Bail-In Legislation.
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"EEA Member Country" means any Member State of the European Union, Iceland, Liechtenstein and Norway.
"EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
"UK Bail-In Legislation" means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
"Write-down and Conversion Powers" means:
(a)    in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
(b)    in relation to any other applicable Bail-In Legislation other than the UK Bail-In Legislation:
i.    any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
ii.    any similar or analogous powers under that Bail-In Legislation; and
(c)    in relation to the UK Bail-In Legislation, any powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under the UK Bail-In Legislation that are related to or ancillary to any of those powers.
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ARTICLE II
COMMITMENTS AND BORROWING PROCEDURES
SECTION 2.1. Commitment
On the terms and subject to the conditions of this Agreement (including Article V), each Lender severally agrees to make its portion of the relevant part of the Loan pursuant to its Commitment set out in Exhibit Q. No Lender's obligation to make its portion of the relevant part of Loan shall be affected by any other Lender's failure to make its portion of the Loan. Only an Increase Lender shall be obliged to make available the Increase Commitment.
SECTION 2.2. Commitment of the Lenders
(a)    Each Lender will make its portion of the relevant part of the Loan referred to in Section 2.1 available to the Borrower in accordance with Section 2.4 either two (2) Business Days prior to the delivery of the Purchased Vessel to the Borrower under the Construction Contract (where the Loan is to be denominated in Dollars) or one (1) Business Day prior to the delivery of the Purchased Vessel to the Borrower under the Construction Contract (where the Loan is to be denominated in EUR). The Commitment of each Lender shall be the commitment of such Lender to make available to the Borrower its portion of the Loan (which, in the case of the Increase Lenders, shall include the Increase Tranche).
(b)    Each Lender's Commitment shall terminate on the earlier of (i) the Commitment Termination Date if the Purchased Vessel is not delivered to the Borrower prior to such date and (ii) the delivery to the Borrower of the Purchased Vessel.
(c)    If any Lender shall default in its obligations under Section 2.1, the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Lender.
(d)    The Commitments in respect of the Original Loan Amount and the Increase Loan Amount shall be made available in one advance at the same time.
SECTION 2.3. Voluntary Reduction of Commitments
(a)    The Borrower may at any time terminate, or from time to time partially reduce, the Commitments upon written notice to the Facility Agent setting forth the amount of the reduction in the Commitments (the "Reduction Notice"). The requested reduction shall be effective two Business Days after the date of delivery of the Reduction Notice and shall be applied to the respective Commitments of the Lenders pro rata according to the amounts of their respective Commitments immediately prior to giving effect to such reduction.
(b)    If the Reduction Notice is delivered by the Borrower on or prior to the Election Date, the Borrower shall not incur any liability to make any payments pursuant to Section 4.4 or to incur any other indemnity or compensation obligation. If the
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Reduction Notice is delivered by the Borrower after the Election Date, the Borrower shall either (i) pay such compensation to the relevant Lender as required by, and in accordance with, Section 4.4 to the extent such Lender incurs a loss as set out in Section 4.4 or (ii) extend the Disbursement Date to a date that falls at least 65 days after the Reduction Notice was first delivered by the Borrower. In the event that the Borrower elects the option under the foregoing clause (ii), the Borrower shall deliver a Loan Request to the Facility Agent in accordance with Section 2.4(a), and the proposed Disbursement Date set out in such Loan Request shall be a date that falls at least 65 days after the Reduction Notice was first delivered by the Borrower.
Where the Commitments are terminated or reduced pursuant to this Section 2.3, the Borrower shall pay to the Facility Agent and the Lenders any fees and commissions that have accrued to but excluding the date of termination or partial reduction (but, in the case of a partial reduction of Commitments, only in respect of the amount of the partial reduction). Any such payment shall be made on the second (2nd) Business Day following receipt by the Borrower of an invoice setting forth the accrued fees and commissions so payable.
SECTION 2.4. Borrowing Procedure
(a)    The Borrower shall deliver a Loan Request and the documents required to be delivered pursuant to Section 5.1.1(a) to the Facility Agent:
i.    where the Loan is to be denominated in Dollars, on or before 11:00 a.m. London time not less than two (2) Business Days in advance of the date that is two (2) Business Days prior to the anticipated Delivery Date; or
ii.    where the Loan is to be denominated in EUR, on or before 10.00 a.m. London time not less than two (2) Business Days in advance of the date that is one (1) Business Day prior to the anticipated Delivery Date.
The aggregate amount of the Loan to be advanced shall not exceed the US Dollar Maximum Loan Amount if the Loan is denominated in USD or, as the case may be, the Maximum Loan Amount where an election has been made for the Loan to be denominated in EUR pursuant to Section 2.4(e). For the purposes of determining the Maximum Loan Amount, the Contract Price will be established at the time of the issue of the Loan Request.
(b)    The Facility Agent shall promptly notify each Lender of any Loan Request by forwarding a copy thereof to each Lender, together with its attachments. On the terms and subject to the conditions of this Agreement, the Loan shall be made on the Business Day specified in such Loan Request. On or before 2:00 p.m., London time, on the Business Day specified in such Loan Request, each Lender shall, without any set-off or counterclaim, deposit with the Facility Agent same day Dollar or, as the case may be, EUR funds in an amount equal to such Lender's Percentage of the requested Loan. Such deposit will be made to an account which the Facility Agent shall specify from time to time by notice to the Lenders. To the
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extent funds are so received from the Lenders, the Facility Agent shall, without any set-off or counterclaim, make such funds available to the Borrower on the Business Day specified in the Loan Request by wire transfer of same day funds in accordance with Section 2.4(c) below.
(c)    If the Loan is denominated in EUR, the Facility Agent shall advance the Loan proceeds to the EUR Pledged Account. If the Loan is to be denominated in USD, the Borrower shall, upon receipt of the Dollar funds into the account referred to in Section 2.4(b) above, (i) complete the purchase of EUR with its counterparties or otherwise as set out in the Loan Request (by authorising and instructing the Facility Agent to remit the necessary Dollar funds to the said counterparties) and shall procure the payment of all EUR proceeds of such transactions to the EUR Pledged Account no later than the Business Day immediately following the Business Day specified in the Loan Request and (ii) to the extent of any such Dollar funds as shall not be used to purchase EUR, shall procure (by authorising and instructing the Facility Agent accordingly) the payment of such Dollar funds to the Dollar Pledged Account on the Disbursement Date.
(d)    Upon the date of delivery to the Borrower of the Purchased Vessel, the Facility Agent shall direct that moneys standing to the credit of the Pledged Accounts shall, in the manner set out in the Loan Request and in accordance with the requirements and provisions of the Pledge Agreement, be disbursed as follows:
i.    in EUR, to the account of the Builder, as designated by the Builder and identified by the Borrower in the Loan Request, to the extent necessary to meet the final instalment of the Contract Price (including any portion thereof attributable to the Buyer's Allowance); and
ii.    
A.    if the Loan is denominated in Dollars, in Dollars, (y) to Hermes in payment of the Second Fee; and (z) to the account of the Borrower, as designated by the Borrower and identified by the Borrower in the Loan Request, in reimbursement of the First Fee and in respect of any additional amounts standing to the Dollar Pledged Account as of the date of such disbursement; or
B.    if the Loan is denominated in EUR, in EUR, to the account of the Borrower, as designated by the Borrower and identified by the Borrower in the Loan Request, in reimbursement of the Hermes EUR Equivalent of the First Fee and the Second Fee,
    and such moneys shall be so disbursed on the said date of delivery.
(e)    At any time after the Effective Date, but no later than the Election Date, the Borrower may elect, by written notice delivered to the Facility Agent substantially in the form of Exhibit F hereto, to denominate the Loan in EUR. Such election will
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be irrevocable. The Facility Agent will notify the Lenders of any election made under this Section 2.4(e).
SECTION 2.5. Funding
Each Lender may, if it so elects, fulfil its obligation to make or continue its portion of the Loan hereunder by causing a branch or Affiliate (or an international banking facility created by such Lender) other than that indicated next to its signature to this Agreement or, as the case may be, in the relevant Lender Assignment Agreement, to make or maintain such portion of the Loan; provided that such portion of the Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay such portion of the Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility; provided, further, that the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had the Lender not caused such branch or Affiliate (or international banking facility) to make or maintain such portion of the Loan.
SECTION 2.6. Nomination of Royal Caribbean Cruises Ltd. as Borrower
(a)    Silversea Cruise Holding Ltd. and Royal Caribbean Cruises Ltd. may, by written notice to the Facility Agent delivered on or prior to the Election Date, nominate Royal Caribbean Cruises Ltd. to be the borrower under this Agreement.
(b)    If Royal Caribbean Cruises Ltd. is nominated as borrower under Section 2.6, on and from the date of receipt of that notice by the Facility Agent:
i.    Royal Caribbean Cruises Ltd. shall be released from its obligations set out in Article XII, Article XII shall cease to apply and all references to "Guarantor" set out in this Agreement shall be deemed to be reference to Royal Caribbean Cruises Ltd. in its capacity as Borrower;
ii.    references to "the Borrower" shall be references to Royal Caribbean Cruises Ltd.;
iii.    Silversea Cruise Holding Ltd. will cease to be a party to, or to have any rights or obligations under, this Agreement; and
iv.    Section 11.19 will be deemed to be deleted.
(c)    It is acknowledged and agreed that, pursuant to this Section 2.6 and clause 5 of Amendment Number Three, Silversea Cruise Holding Ltd. and Royal Caribbean Cruises Ltd. nominated Royal Caribbean Cruises Ltd. as the borrower under this Agreement. In connection with such nomination, this Agreement has, with effect from the Amendment Three Effective Date, been amended and restated to reflect, amongst other things, the matters referred to in paragraph (b) above.
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments
(a)    Subject to Section 3.1(b), the Borrower shall repay the Loan in 24 equal semi-annual instalments, with the first instalment to fall due on the date falling six (6) months after the Disbursement Date and which must be a date no later than 10 August 2025 (being the date falling six months after Commitment Termination Date) and the final instalment to fall due on the date of Final Maturity.
(b)    If, on the date of delivery to the Borrower of the Purchased Vessel, the outstanding principal amount of the Loan exceeds the US Dollar Maximum Loan Amount or, as the case may be, the Maximum Loan Amount if an election is made for the Loan to be denominated in EUR pursuant to Section 2.4(e) (as a result of a reduction in the Contract Price after the Disbursement Date and before the delivery of the Purchased Vessel), the Borrower shall repay the Loan in an amount equal to such excess within two (2) Business Days after the date of delivery to the Borrower of the Purchased Vessel. Any such partial prepayment shall be applied pro rata in satisfaction of the remaining scheduled repayment instalments of the Loan.
(c)    No amount repaid by the Borrower pursuant to this Section 3.1 may be re-borrowed under the terms of this Agreement.
SECTION 3.2. Prepayment
(a)    The Borrower:
i.    may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of the Loan; provided that:
a.    all such voluntary prepayments shall require (x) for prepayments on or after the Disbursement Date made prior to delivery to the Borrower of the Purchased Vessel in respect of the advance made on the Disbursement Date, at least two (2) Business Days' prior written notice from the Borrower to the Facility Agent, and (y) for all other prepayments, at least 30 calendar days' prior written notice, if all or any portion of the Loan is a Fixed Rate Loan, and at least five (5) Business Days' (or, if such prepayment is to be made on the last day of an Interest Period for such Loan, four (4) Business Days') prior written notice, if the Loan is a Floating Rate Loan, in each case from the Borrower to the Facility Agent; and
b.    all such voluntary partial prepayments shall be in an aggregate minimum amount of $10,000,000 and a multiple of $1,000,000 or, where the Loan is denominated in EUR, €10,000,000 and a multiple
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of €1,000,000 (or in the remaining amount of the Loan) and shall be applied in inverse order of maturity or ratably among all remaining instalments, as the Borrower shall designate to the Facility Agent, in satisfaction of the remaining repayment instalments of the Loan; and
ii.    shall, immediately upon any acceleration of the repayment of the instalments of the Loan pursuant to Section 8.2 or 8.3 or the mandatory prepayment of the Loan pursuant to Section 9.2, repay the Loan.
(b)    If, by reason of a Change in Law, it becomes unlawful under any applicable law (i) for a Lender to be subject to a commitment to make available to the Borrower such Lender's portion of the Loan hereunder as provided in Section 2.2, (ii) for a Lender to make or hold its portion of the Loan in its Lending Office, (iii) for a Lender to receive a payment under this Agreement or any other Loan Document or (iv) for a Lender to comply with any other material provision of, or to perform its obligations as contemplated by, this Agreement or any other Loan Document, the Lender affected by such Change in Law may give written notice (the "Illegality Notice") to the Borrower and the Facility Agent of such Change in Law, including reasonable details of the relevant Change of Law. Any Illegality Notice must be given by a Lender no later than 120 days after such Lender first obtains actual knowledge or written notice of the relevant Change in Law.
(c)    If an affected Lender delivers an Illegality Notice prior to the Disbursement Date, then, subject to Section 11.17, (1) whilst the arrangements contemplated by the following clause (2) have not yet been completed and the Commitment of such Lender has not been formally cancelled, such Lender shall not be obliged to fund its Commitment and (2) the Borrower shall be entitled at any time within 50 days after receipt of such Illegality Notice to replace such Lender with one or more financial institutions (I) reasonably acceptable to the Facility Agent, (II) meeting the criteria set out in Section 2.2 of the Terms and Conditions, (III) acceptable to Hermes and (IV) in the case of a replacement of an Option A Lender, reasonably acceptable to KfW; provided that any such assignment shall be either (x) in the case of a single assignment, an assignment of all of the rights and obligations of the assigning Lender under this Agreement or (y) in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement. If, at the end of such 50-day period, the Borrower has not so replaced such affected Lender as aforesaid and no alternative arrangements have been implemented pursuant to Section 11.17, the Commitment held by such Lender shall be cancelled.
(d)    If an affected Lender delivers an Illegality Notice on or following the Disbursement Date, then the Borrower shall have the right, but not the obligation, exercisable at any time within 50 days after receipt of such Illegality Notice (the "Option Period"), either (1) to prepay the portion of the Loan held by such Lender in full on or before the expiry of the Option Period, together with all unpaid interest and fees thereon
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accrued to but excluding the date of such prepayment, or (2) to replace such Lender on or before the expiry of the Option Period with one or more financial institutions (I) reasonably acceptable to the Facility Agent, (II) meeting the criteria set out in Section 2.2 of the Terms and Conditions, (III) acceptable to Hermes and (IV) in the case of a replacement of an Option A Lender, reasonably acceptable to KfW; provided that (x) in the case of a single assignment, any such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or, in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement and (y) no Lender shall be obligated to make any such assignment as a result of an election by the Borrower pursuant to this Section 3.2(d) unless and until such Lender shall have received one or more payments from one or more Assignee Lenders and/or the Borrower in an aggregate amount at least equal to the portion of the Loan held by such Lender, together with all unpaid interest and fees thereon accrued to but excluding the date of such assignment (and all other amounts then owing to such Lender under this Agreement).
(e)    Each prepayment of the Loan made pursuant to this Section 3 shall be without premium or penalty, except as may be required by Section 4.4. No amounts prepaid by the Borrower may be re-borrowed under the terms of this Agreement except as provided in Section 3.7 and the last paragraph of Section 9.1 (which follows Section 9.1.11).
SECTION 3.3. Right of cancellation in relation to a Defaulting Lender
(a)    If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting Lender (but only with the prior consent of the Hermes) give the Facility Agent 10 Business Days' notice of cancellation of each Commitment of that Lender.
(b)    On the notice referred to in paragraph (a) above becoming effective, each Commitment of the Defaulting Lender shall immediately be reduced to zero.
(c)    The Facility Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.
SECTION 3.4. Interest Provisions.
Interest on the outstanding principal amount of the Loan shall accrue and be payable in accordance with this Section 3.4.
SECTION 3.4.1. Rates.
(a)    The Loan shall accrue interest from the Disbursement Date to the date of repayment or prepayment of the Loan in full to the Lenders at the Fixed Rate, subject to (i) any election made by the Borrower to elect the Floating Rate
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pursuant to Section 3.4.2 and (ii) any conversion of any portion of the Loan held by a Lender to a Floating Rate Loan upon the termination of the CIRR Agreement to which such Lender is a party in accordance with Section 3.4.3 (and, in which case, the Loan shall accrue interest at the Floating Rate). Interest calculated at the Fixed Rate or the Floating Rate shall be payable semi-annually in arrears on the Repayment Dates. The Loan shall bear interest for each Interest Period, from and including the first day of such Interest Period up to but excluding the last day of such Interest Period, at the interest rate determined as applicable to the Loan for such Interest Period. All interest shall be calculated on the basis of the actual number of days elapsed over a year comprised of 360 days.
(b)    
(i)    By written notice to the Facility Agent delivered on or before the Election Date, the Borrower may, subject to the prior administrative approval of KfW acting on the instructions of the Federal Republic of Germany and where the Loan is to be denominated in EUR the election pursuant to Section 2.4(e) has been made before the date of such written notice, elect, without incurring any liability to make any payments pursuant to Section 4.4 or any other indemnity or compensation obligation, to pay interest on the Loan at the percentage rate per annum (the KfW Fixed Rate) equal to the aggregate of:
A.    the weighted average rate of interest (and having regard to the Percentage of the Commitment of each Lender) at which KfW (on behalf of each Option A Lender) and each Option B Lender is able to hedge its respective cost and fund its Commitment having regard to the currency and funding and payment profile of the Loan (and on the basis that the hedging by KfW shall be required to be approved by the Federal Republic of Germany), but which rate of interest shall, for this purpose, be neither a rate which is either (1) lower than (if an election has been made for the Loan to be denominated in EUR pursuant to Section 2.4(e)) the EUR CIRR Floor, otherwise, the USD CIRR Floor or, (2) higher than (if an election has been made for the Loan to be denominated in EUR pursuant to Section 2.4(e)) the EUR CIRR Cap, otherwise, the USD CIRR Cap; and
B.    the applicable Margin.
(ii)    In connection with the option to elect the KfW Fixed Rate set out above, at any time on or before the Election Date, the Borrower shall be entitled to consult with the Facility Agent and request that the Facility Agent obtains indicative quotes of the KfW Fixed Rate at or around the time of any such request and such indicative quotes (based on the relevant information provided by KfW and each Option B Lender) shall be forwarded by the Facility Agent to the Borrower. Each Option B Lender agrees to provide to the Facility Agent and KfW, promptly upon request, sufficient information and indicative rates of
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interest in relation to its hedging arrangements contemplated by this Section 3.4.1(b) to enable the indicative KfW Fixed Rate to be provided to the Borrower pursuant to this Section 3.4.1(b).
(c)    If, on or before the Election Date, the Borrower has neither elected the KfW Fixed Rate nor the Floating Rate in accordance with Section 3.4.1(b) above or Section 3.4.2 below, then it is acknowledged and agreed that on the date falling 64 days prior to the actual Disbursement Date (or, if such date is not a Business Day, the next Business Day following that date), the CIRR will be set by KfW (acting on the instructions of the Federal Republic of Germany in its sole discretion), with the CIRR to be a rate which is (i) equal to or higher than the USD CIRR Floor or, if an election has been made for the Loan to be denominated in EUR pursuant to Section 2.4(e), the EUR CIRR Floor and (ii) equal to or lower than the USD CIRR Cap or, if an election has also been made for the Loan to be denominated in EUR pursuant to Section 2.4(e), the EUR CIRR Cap. The Facility Agent shall notify the Borrower in writing by no later than the next Business Day of the CIRR so set by KfW. If notwithstanding the above arrangements, KfW does not set a CIRR on the date referred to above, then the USD CIRR Cap or, if an election has also been made for the Loan to be denominated in EUR pursuant to Section 2.4(e), the EUR CIRR Cap shall be set as the CIRR for the purpose of the Fixed Rate.
SECTION 3.4.2. Election of Floating Rate.
(a)    At any time prior to the Disbursement Date, and provided that the Borrower has not elected the KfW Fixed Rate pursuant to Section 3.4.1(b), the Borrower may elect to pay interest on the Loan at the Floating Rate by written notice (the "Floating Rate Election Notice") to the Facility Agent. If the Floating Rate Election Notice is delivered by the Borrower on or prior to the Election Date, the Borrower shall not incur any liability to make any payments pursuant to Section 4.4 or to incur any other indemnity or compensation obligation. If the Floating Rate Election Notice is delivered by the Borrower after the Election Date, the Borrower shall either (i) pay such compensation to the relevant Lender as required by, and in accordance with, Section 4.4 to the extent such Lender incurs a loss as set out in Section 4.4 or (ii) extend the Disbursement Date to a date that falls at least 65 days after the Floating Rate Election Notice was first delivered by the Borrower. In the event that the Borrower elects the option under the foregoing clause (ii), the Borrower shall deliver a Loan Request to the Facility Agent in accordance with Section 2.4(a), and the proposed Disbursement Date set out in such Loan Request shall be a date that falls at least 65 days after the Floating Rate Election Notice was first delivered by the Borrower.
(b)    If the Borrower has not elected the Floating Rate prior to the Disbursement Date as permitted by Section 3.4.2(a), the Borrower may elect, by written notice to the Facility Agent no later than 2:00 p.m. Frankfurt time 32 days prior to the end of an Interest Period and subject to Section 4.4, to pay interest on the Loan for the remainder of the term of the Loan at the Floating Rate, with effect from the end of that Interest Period.
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(c)    
(i)    If the Loan is denominated in Dollars and the Borrower has elected the Floating Rate pursuant to Section 3.4.2(a), provided that the Borrower has not elected the KfW Fixed Rate pursuant to Section 3.4.1(b), Interest Periods shall be for a duration of 6 months.
(ii)    If the Loan is denominated in EUR and the Borrower has elected the Floating Rate pursuant to Section 3.4.2(a), provided that the Borrower has not elected the KfW Fixed Rate pursuant to Section 3.4.1(b), Interest Periods shall be for a duration of 6 months.
(d)    Any election made under any of Section 3.4.2(a) or Section 3.4.2(b) may only be made one time during the term of the Loan and shall be irrevocable.
SECTION 3.4.3. Conversion to Floating Rate.
If, during any Interest Period, and where interest on the Loan is determined at the Fixed Rate, the CIRR Agreement in effect with any Lender is terminated for any reason (other than as a result of the negligence or wilful misconduct of such Lender), then the portion of the Loan held by such Lender shall convert to a Floating Rate Loan on the last day of such Interest Period, and the Borrower shall pay interest on such portion of the Loan at the Floating Rate on such portion for the remainder of the term of the Loan.
Notwithstanding the foregoing paragraph, the Borrower shall not be obligated to make any indemnity or compensation payment to any Lender in connection with any conversion to the Floating Rate unless (a) such conversion is a result of an election by the Borrower pursuant to Section 3.4.2 or (b) such conversion occurs as a result of any acceleration of the Loan due to the occurrence of an Event of Default.
SECTION 3.4.4. Post-Maturity Rates.
After the date any principal amount of the Loan is due and payable (whether on any Repayment Date, upon acceleration or otherwise), or after any other monetary Obligation of the Borrower shall have become due and payable, the Borrower shall pay, but only to the extent permitted by law, interest (after as well as before judgment) on such amounts for each day during the period while such payment is overdue at a rate per annum certified by the Facility Agent to the Borrower (which certification shall be conclusive in the absence of manifest error) to be equal to (a) in the case of (i) principal of and interest on the Loan payable to each Option A Lender or (ii) interest on the Loan payable to each Option B Lender, the sum of the Floating Rate plus 3% per annum and (b) in the case of any other monetary Obligation (including, without limitation, principal on the Loan payable to each Option B Lender), the sum of the Floating Rate plus 2% per annum.
SECTION 3.4.5. Payment Dates.
Interest accrued on the Loan shall be payable, without duplication, on the earliest of:
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(a)    each Repayment Date;
(b)    the date of any prepayment, in whole or in part, of principal outstanding on the Loan (but only on the principal so prepaid);
(c)    on that portion of the Loan the repayment of which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration; and
(d)    in the case of any interest on any principal, interest or other amount owing under this Agreement or any other Loan Document that is overdue, from time to time on demand of the Facility Agent until such overdue amount is paid in full.
SECTION 3.4.6. Interest Rate Determination; Replacement Reference Banks
The Facility Agent shall obtain from each Reference Bank timely information for the purpose of determining the LIBO Rate in the event that no relevant London interbank offered rate appears on Thomson Reuters LIBOR01 or LIBOR02 Page (or any successor page) and the LIBO Rate is to be determined by reference to quotations supplied by the Reference Banks. If any one or more of the Reference Banks shall fail to furnish in a timely manner such information to the Facility Agent for any such interest rate, the Facility Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Banks. If the Borrower elects to add an additional Reference Bank hereunder or a Reference Bank ceases for any reason to be able and willing to act as such, the Facility Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Bank reasonably acceptable to the Borrower, and such replaced Reference Bank shall cease to be a Reference Bank hereunder. The Facility Agent shall furnish to the Borrower, to the Borrower and to the Lenders each determination of the LIBO Rate made by reference to quotations of interest rates furnished by Reference Banks.
If an election is made for the Loan to be denominated in EUR pursuant to Section 2.4(e), the Facility Agent shall obtain from each Reference Bank timely information for the purpose of determining the EURO Rate in the event that no relevant London interbank offered rate appears on Thomson Reuters EURIBOR01 Page (or any successor page) and the EURO Rate is to be determined by reference to quotations supplied by the Reference Banks. If any one or more of the Reference Banks shall fail to furnish in a timely manner such information to the Facility Agent for any such interest rate, the Facility Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Banks. If the Borrower elects to add an additional Reference Bank hereunder or a Reference Bank ceases for any reason to be able and willing to act as such, the Facility Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Bank reasonably acceptable to the Borrower, and such replaced Reference Bank shall cease to be a Reference Bank hereunder. The Facility Agent shall furnish to the Borrower, to the Borrower and to the Lenders each determination of the EURO Rate made by reference to quotations of interest rates furnished by Reference Banks.
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SECTION 3.5. Commitment Fee.
The Borrower agrees to pay to the Facility Agent for the account of each Lender a commitment fee (the "Commitment Fee") on its daily unused portion of the Maximum Loan Amount (as such Maximum Loan Amount may be adjusted from time to time), for the period commencing on the Effective Date and continuing through the earliest to occur (the "Commitment Fee Termination Date") of (i) the Disbursement Date, (ii) the date upon which the Facility Agent has provided the Borrower with written notice that the Lenders will not advance the Loan because the Commitments have been terminated pursuant to Section 8.2 or 8.3, (iii) the Commitment Termination Date and (iv) the date the Commitments shall have been terminated pursuant to Section 2.3. Should the Facility Agent provide the Borrower notice that the Lenders will not advance the Loan because Hermes has cancelled the Hermes Insurance Policy, the Commitment Fee paid by the Borrower for the account of each Lender shall be promptly refunded to the Borrower by such Lender; provided however that (i) no Lender shall be obliged to refund any Commitment Fee to the Borrower in these circumstances if the cancellation of the Hermes Insurance Policy is primarily attributable to the Borrower and (ii) (where a refund is applicable) a Lender shall only be obliged to refund to the Borrower an amount equal to the sum of (x) the portion of the Commitment Fee that such Lender has not paid to KfW in accordance with the applicable CIRR Agreement and (y) the portion of the Commitment Fee that such Lender has so paid to KfW and that such Lender actually recovers from KfW in the event of the cancellation of the Hermes Insurance Policy (and each Lender agrees to request from KfW the amount of Commitment Fee that it has paid to KfW).
SECTION 3.5.1. Payment of Commitment Fee.
(a)    The Commitment Fee shall be payable by the Borrower to the Facility Agent for the account of each Lender quarterly in arrears, with the first such payment (the "First Commitment Fee Payment") to be made on the day falling three months following the Effective Date and the final such payment to be made on the Commitment Fee Termination Date (each date on which a Commitment Fee payment is required to be made in accordance with this Section 3.4.1 referred to herein as a "Commitment Fee Payment Date"). The Commitment Fee shall be in the amount in EUR equal to the product of the Applicable Commitment Rate, multiplied by, for each day elapsed since the preceding Commitment Fee Payment Date (or, in the case of the First Commitment Fee Payment, the Effective Date), the Maximum Loan Amount in effect on such day, divided by 360 days; provided that the Borrower may elect to pay the Commitment Fee on any Commitment Fee Payment Date in Dollars by giving notice to the Facility Agent five (5) Business Days before such date. If the Borrower elects to pay the Commitment Fee in Dollars, the exchange rate used to convert the fee from EUR to Dollars shall be the 10 A.M. midpoint market fixing for the conversion of EUR to Dollars set by the Federal Reserve Bank of New York two (2) Business Days prior to the relevant Commitment Fee Payment Date.
(b)    No commitment fee is payable to the Facility Agent (for the account of a Lender) on any Commitment of that Lender for any day on which that Lender is a Defaulting Lender.
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SECTION 3.6. CIRR Guarantee Charge.
SECTION 3.6.1. Generally
The Borrower agrees to pay to the Facility Agent for the account of KfW a fee of 0.01% per annum (the "CIRR Guarantee Charge") on the Maximum Loan Amount (having regard to the paragraph below) as at the Effective Date for the period commencing on 16 October 2019 (being the date that is six months after the date of the Construction Contract) and continuing until the earliest of (i) the date falling 60 days prior to the Disbursement Date, (ii) the date falling 32 days after either the date on which the Borrower elects the Floating Rate pursuant to Section 3.4.2 or, as to any portion of the Loan converted to a Floating Rate Loan pursuant to Section 3.4.3, the date on which such portion so converts to a Floating Rate Loan, (iii) the date falling 32 days after the date on which the Borrower elects to cancel all or part of the Commitments pursuant to Section 2.3, (iv) the date upon which the Facility Agent has provided written notice to the Borrower that the Lenders will not advance the Loan because the Commitments shall have been terminated pursuant to Sections 8.2 or 8.3 and (v) any other date on which the Commitments shall have been terminated.
SECTION 3.6.2. Payment.
The CIRR Guarantee Charge shall be payable by the Borrower in EUR quarterly in arrears commencing with the date falling three months after the commencement of the period described in Section 3.5.1 and thereafter on each subsequent three-month anniversary of such period and finally on the date on which the CIRR Guarantee Charge ceases to accrue as described in Section 3.5.1.
SECTION 3.7. Other Fees.
The Borrower agrees to pay to the Facility Agent the agreed-upon fees set forth in the Fee Letters on the dates and in the amounts set forth therein.
SECTION 3.8. Temporary Repayment.
If the proceeds of the Loan have not been utilised directly or indirectly to pay for delivery to the Borrower of the Purchased Vessel within 15 days after the initial Disbursement Date and have been deposited in accordance with Section 4.12, the Borrower may, by notice to the Facility Agent in accordance with Section 3.2(a) and specifying that such prepayment may be re-borrowed under this Agreement, prepay the Loan, together with accrued interest on the Loan so prepaid, and shall be entitled to utilise funds standing to the credit of the Pledged Accounts for the purpose of applying these in or towards satisfaction of such prepayment obligation. If the Purchased Vessel is subsequently delivered to the Original Borrower or the Borrower, the Borrower shall be permitted to submit one additional Loan Request in accordance with Section 2.4 to re-borrow the Loan previously prepaid under this Section; provided, however, that the date of funding of any such re-borrowed Loan shall not be later than the Commitment Termination Date and provided, further, that such date of funding shall be the Disbursement Date for all purposes hereunder with respect to such re-borrowed Loan. Prepayment of the Loan made
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pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4.
SECTION 3.9. Limit on Interest Make-Up.
If, in relation to any Interest Period during which any portion of the Loan held by a Lender carries interest at the Fixed Rate, the amount of the interest make-up to be received by such Lender pursuant to the applicable CIRR Agreement entered into by such Lender is limited to an annual rate of twelve per cent. (12%) per annum by virtue of the provisions of Section 1.1 of the Terms and Conditions, then the Borrower shall pay to the Facility Agent for the account of such Lender an additional amount by way of interest equal to the amount of the interest make-up forgone by the relevant Lender as a consequence of such limitation. Such additional amount shall be payable by the Borrower within five (5) Business Days following receipt by the Borrower from the Facility Agent of the relevant Lender's invoice accompanied by reasonable calculation and explanation of the additional amount in question.
SECTION 3.10. Cancellation of CIRR Agreements.
No Lender shall be entitled to cancel or terminate the CIRR Agreement to which it is a party without the prior written consent of the Borrower.
ARTICLE IV
CERTAIN LIBO RATE, EURO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate or EURO Rate Lending Unlawful.
If after the Effective Date the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other governmental authority having jurisdiction over such Lender asserts that it is unlawful, for such Lender to make, continue or maintain its portion of any part of the Loan bearing interest at a rate based on the LIBO Rate or, as the case may be, EURO Rate, the obligation of such Lender to make, continue or maintain its portion of the Loan bearing interest at a rate based on the LIBO Rate or, as the case may be, EURO Rate shall, upon notice thereof to the Borrower, the Facility Agent and each other Lender, forthwith be suspended until the circumstances causing such suspension no longer exist, provided that such Lender's obligation to make, continue and maintain its portion of the Loan hereunder shall be automatically converted into an obligation to make, continue and maintain its portion of the Loan bearing interest at a rate to be negotiated between such Lender and the Borrower that is the equivalent of the sum of the LIBO Rate or, as the case may be, EURO Rate for the relevant Interest Period plus the applicable Floating Rate Margin.
SECTION 4.2. Deposits Unavailable
If, on or after the date the Borrower elects the Floating Rate pursuant to Section 3.4.2 or if any Lender shall have entered into an Option B Interest Make-Up Agreement (an "Option B Lender"), the Facility Agent shall have determined that:
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(a)    Dollar or EUR (if an election is made for the Loan to be denominated in EUR pursuant to Section 2.4(e)) deposits in the relevant amount and for the relevant Interest Period are not available to each Reference Bank in its relevant market, or
(b)    by reason of circumstances affecting the Reference Banks' relevant markets, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate or, as the case may be, EURO Rate loans for the relevant Interest Period, or
(c)    the cost to Option B Lenders that in the aggregate hold more than 50% of the aggregate outstanding principal amount of the Loan then held by Option B Lenders, if any Lender shall have entered into an Option B Interest Make-Up Agreement, of obtaining matching deposits in the relevant interbank market for the relevant Interest Period would be in excess of the LIBO Rate, or as the case may be, EURO Rate (provided that no Option B Lender may exercise its rights under this Section 4.2(c) for amounts up to the difference between such Option B Lender's cost of obtaining matching deposits on the date such Option B Lender becomes a Lender hereunder less the LIBO Rate or, as the case may be, EURO Rate on such date),
then the Facility Agent shall give notice of such determination (hereinafter called a "Determination Notice") to the Borrower and each of the Lenders. The Borrower, the Lenders and the Facility Agent shall then negotiate in good faith in order to agree upon a mutually satisfactory interest rate and interest period (or interest periods) to be substituted for those which would otherwise have applied under this Agreement. If the Borrower, the Lenders and the Facility Agent are unable to agree upon an interest rate (or rates) and interest period (or interest periods) prior to the date occurring fifteen (15) Business Days after the giving of such Determination Notice, the Facility Agent shall (after consultation with the Lenders) set an interest rate and an interest period (or interest periods), in each case to take effect at the end of the Interest Period current at the date of the Determination Notice, which rate (or rates) shall be equal to the sum of the applicable Floating Rate Margin and the weighted average of the corresponding interest rates at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period on Thomson Reuters' pages KLIEMMM, GARBIC01 and FINA01 (or such other pages as may replace Thomson Reuters' pages KLIEMMM, GARBIC01 or FINA01 on Thomson Reuters' service) (or, in the case of clause (c) above, the lesser of (x) the respective cost to the Option B Lenders of funding the respective portions of the Loan held by such Option B Lenders and (y) such weighted average). The Facility Agent shall furnish a certificate to the Borrower as soon as reasonably practicable after the Facility Agent has given such Determination Notice setting forth such rate(s). In the event that the circumstances described in this Section 4.2 shall extend beyond the end of an interest period agreed or set pursuant hereto, the foregoing procedure shall be repeated as often as may be necessary.
SECTION 4.3. Increased Loan Costs, etc.
If after the Effective Date a change in any applicable treaty, law, regulation or regulatory requirement or in the interpretation thereof or in its application to the Borrower, or if compliance by any Lender with any applicable direction, request, requirement or guideline (whether or not
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having the force of law) of any governmental or other authority including, without limitation, any agency of the European Union or similar monetary or multinational authority insofar as it may be changed or imposed after the date hereof, shall:
(a)    subject any Lender to any taxes, levies, duties, charges, fees, deductions or withholdings of any nature with respect to its portion of the Loan or any part thereof imposed, levied, collected, withheld or assessed by any jurisdiction or any political subdivision or taxing authority thereof (other than (i) taxes as to which such Lender is indemnified under Section 4.6 and (ii) taxes excluded from the indemnity set forth in Section 4.6); or
(b)    change the basis of taxation to any Lender (other than a change in taxation on the overall net income of any Lender) of payments of principal or interest or any other payment due or to become due pursuant to this Agreement; or
(c)    impose, modify or deem applicable any reserve or capital adequacy requirements (other than the increased capital costs described in Section 4.5 and the reserve costs described in Section 4.7) or other banking or monetary controls or requirements which affect the manner in which a Lender shall allocate its capital resources to its obligations hereunder or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender (provided that such Lender shall, unless prohibited by law, allocate its capital resources to its obligations hereunder in a manner which is consistent with its present treatment of the allocation of its capital resources); or
(d)    impose on any Lender any other condition affecting its portion of the Loan or any part thereof,
and the result of any of the foregoing is either (i) to increase the cost to such Lender of making its portion of the Loan or maintaining its portion of the Loan or any part thereof, (ii) to reduce the amount of any payment received by such Lender or its effective return hereunder or on its capital or (iii) to cause such Lender to make any payment or to forego any return based on any amount received or receivable by such Lender hereunder, then and in any such case if such increase or reduction in the opinion of such Lender materially affects the interests of such Lender, (A) such Lender shall (through the Facility Agent) notify the Borrower of the occurrence of such event and use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Lending Office if the making of such a designation would avoid the effects of such law, regulation or regulatory requirement or any change therein or in the interpretation thereof and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (B) the Borrower shall forthwith upon such demand pay to the Facility Agent for the account of such Lender such amount as is necessary to compensate such Lender for such additional cost or such reduction and ancillary expenses, including taxes, incurred as a result of such adjustment unless such additional costs are attributable to a FATCA Deduction required to be made by a party to this Agreement or are otherwise excluded from the indemnity set forth in Section 4.6 or Section 11.4. 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,
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(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 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 organisation or in the relevant jurisdiction in which such Lender does business. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such increased costs or reductions and of such Lender's intention to claim compensation therefor; provided further that, if the circumstance giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such cost or reductions and of such Lender's intention to claim compensation therefor.
SECTION 4.4. Funding Losses.
SECTION 4.4.1. Indemnity.
In the event any Lender: (i) is required to liquidate or to re-deploy (at not less than the market rate) deposits or other funds acquired by such Lender to fund any portion of the principal amount of its portion of the Loan or (ii) exercises such Lender's right to irrevocably terminate (in whole or in part) the CIRR Guarantee after the Latest Date in accordance with Section 8.1 of the Terms and Conditions or, as the case may be in the case of an Option A Lender, Section 8.2 of the Terms and Conditions, in each case, as a result of:
(a)    if at the time interest is calculated at the Floating Rate on such Lender's portion of the Loan, any conversion or repayment or prepayment or acceleration of the principal amount of such Lender's portion of the Loan on a date other than the scheduled last day of an Interest Period or otherwise scheduled date for repayment or payment (in each case, including payments made in accordance with Section 3.1(b), but excluding any prepayment made following an election by the Borrower to effect a prepayment pursuant to Section 3.2(d), or any repayment pursuant to Section 9.1.12, by reason of a Non-Guarantor Related Change in Law);
(b)    if at the time interest is calculated at the Fixed Rate on such Lender's portion of the Loan, any repayment or prepayment or acceleration of the principal amount of such Lender's portion of the Loan, other than any repayment made on the date scheduled for such repayment (in each case, excluding any prepayment made following an election by the Borrower to effect a prepayment pursuant to Section 3.2(d), or any repayment pursuant to Section 9.1.12, by reason of a Non-Guarantor Related Change in Law);
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(c)    without prejudice to the rights of the Borrower to elect an option under Section 3.4.2(a), an election by the Borrower of the Floating Rate in accordance with Section 3.4.2(a) (where the Disbursement Date is a date that falls less than 65 days after the Floating Rate Election Notice was delivered by the Borrower) or Section 3.4.2(b);
(d)    a reduction or termination of the Commitments by the Borrower pursuant to Section 2.3 and to the extent that the Borrower has a liability under this Section pursuant to Section 2.3(b)(i);
(e)    the Loan not being made in accordance with the Loan Request therefor due to the fault of an Obligor or as a result of any of the conditions precedent set forth in Article V not being satisfied;
(f)    any prepayment of the Loan by the Borrower pursuant to Section 3.8;
(g)    where interest on the Loan is to be calculated at the Fixed Rate or where the Borrower has elected the KfW Fixed Rate in accordance with Section 3.3.1(b), the Loan not being made on or before the Commitment Termination Date; or
(h)    where Borrower has elected the KfW Fixed Rate in accordance with Section 3.3.1(b), the Disbursement Date of the Loan is not the same date as the anticipated Disbursement Date at the time the Borrower elected the KfW Fixed Rate (and which anticipated Disbursement Date was applied for the purpose of determining the KfW Fixed Rate),
(each, a "Funding Losses Event"), then, upon the written notice of such Lender to the Borrower (with a copy to the Facility Agent), the Borrower shall, within five (5) Business Days of its receipt of such notice and, where the KfW Fixed Rate applies, save as provided below:
a.    if at that time interest is calculated at the Floating Rate on such Lender's portion of the Loan, pay directly to the Facility Agent for the account of such Lender an amount (the "Floating Rate Indemnity Amount") equal to the amount, if any, by which:
(i)    interest (not including the relevant Floating Rate Margin) calculated at the Floating Rate which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event for the period from the date of receipt of any part of its share in the Loan to the last day of the applicable Interest Period,
exceeds:
(ii)    the amount which such Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Interest Period; or
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b.    if at that time interest is calculated at the Fixed Rate on such Lender's portion of the Loan, pay to the Facility Agent the sum of:
(A)    an amount equal to the amount, if any, by which:
(i)    interest calculated at the rate per annum equal to (a) the CIRR which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event minus (b) the administrative margin of 0.20%, for the period from the date of receipt of any part of its share of the Loan to the final scheduled date for the repayment of Loan in full pursuant to Section 3.1,
exceeds:
(ii)    the amount by which such Lender would be able to obtain by placing for such remaining period an equal amount to the amount received by it on deposit and receiving interest equal to the money market rate then applicable to Dollars on the Reuters page "ICAP1" or, as the case may be, EUR on the Reuters page "ICAPEURO" (the "Reinvestment Rate"),
such amount to be discounted to present value at the Reinvestment Rate or, where the KfW Fixed Rate applies in the case of sections 4.4.1(g) and (h), the cost to KfW (on behalf of each Option A Lender) and each Option B Lender of adjusting, renewing, terminating or otherwise altering the hedging arrangements entered into by KfW and each Option B Lender in connection with the settling and provision of the KfW Fixed Rate; plus
(B)    only if KfW (where such Lender is an Option A Lender) or the Lender (where such Lender is an Option B Lender) is funding itself at a floating rate, an amount equal to the Floating Rate Indemnity Amount (and assuming for the purpose of this calculation that the interest on the Loan is calculated at the Floating Rate and not the Fixed Rate).
Any amounts received by the Facility Agent under b.(A) above shall, unless otherwise advised by KfW, be for the account of, and shall be payable to, KfW on behalf of the Federal Republic of Germany; and any amounts received by the Facility Agent under b.(B) above in respect of a Lender's portion of the Loan shall be for the account of, and shall be payable to, KfW (where such Lender is an Option A Lender) or to that Lender (where such Lender is an Option B Lender).
If interest on the Loan is to be calculated at the Fixed Rate or the Borrower has elected the KfW Fixed Rate in accordance with Section 3.4.1(b), and the Borrower voluntarily cancels, terminates or partially reduces the Commitments in accordance with Section 2.3 or the amount of the Loan is less than the total Commitments as at the date of this Agreement, and such
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cancellation or reduction is due to the non-delivery or late delivery of the Purchased Vessel by the Builder due to of the bankruptcy or insolvency of the Builder then (1) no indemnity payments can be claimed by the Option A Lenders under b. above in these circumstances and (2) where the cancellation arises as a result of the late delivery of the Purchased Vessel by the Builder, the amounts that can be claimed by way of indemnity from the Borrower under this Section 4.4 in respect of the KfW Fixed Rate in these circumstances shall be limited to the aggregate of the costs actually incurred by KfW (on behalf of the Option A Lenders) and each Option B Lender in adjusting the hedging arrangements entered into by KfW and such Option B Lenders in connection with the KfW Fixed Rate to take account of the delayed delivery date.
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 after the Effective Date any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority increases the amount of capital required to be maintained by any Lender or any Person controlling such Lender, and the rate of return on its or such controlling Person's capital as a consequence of its Commitment or its portion of the Loan made by such Lender is reduced to a level below that which such Lender or such controlling Person would have achieved but for the occurrence of any such change in circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, the Borrower shall immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. Any such notice shall (i) describe in reasonable detail the capital adequacy requirements which have been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such lowered return, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such 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 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Lending Office if the making of such a designation would avoid such reduction in such rate of return and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender's intention to claim compensation therefor; provided further that, if the circumstance giving rise to such reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies
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the Borrower of the circumstance giving rise to such reductions and of such Lender's intention to claim compensation therefor.
SECTION 4.6. Taxes.
All payments by the Obligors of principal of, and interest on, the Loan and all other amounts payable under any Loan Document, including for the avoidance of doubt under any Fee Letter, 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 of such Lender and franchise taxes imposed in lieu of net income taxes or taxes on receipts, by the jurisdiction under the laws of which such Lender is organised or any political subdivision thereof or the jurisdiction of such Lender's Lending Office or any political subdivision thereof or any other jurisdiction unless such net income taxes are imposed solely as a result of the applicable Obligor's activities in such other jurisdiction, and (ii) any taxes imposed under FATCA (such non-excluded items being called "Covered Taxes"). In the event that any withholding or deduction from any payment to be made by any Obligor under any Loan Document is required in respect of any Covered Taxes pursuant to any applicable law, rule or regulation, then the relevant Obligor will:
(a)    pay directly to the relevant authority the full amount required to be so withheld or deducted;
(b)    promptly forward to the Facility Agent an official receipt or other documentation satisfactory to the Facility Agent evidencing such payment to such authority; and
(c)    pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
Moreover, if any Covered Taxes are directly asserted against the Facility Agent or any Lender with respect to any payment received or paid by the Facility Agent or such Lender hereunder, the Facility Agent or such Lender may pay such Covered Taxes and the Borrower will promptly pay such additional amounts (including any penalties, interest or expenses) as is necessary in order that the net amount received by such person after the payment of such Covered Taxes (including any Covered Taxes on such additional amount) shall equal the amount such person would have received had no such Covered Taxes been asserted.
Any Lender claiming any additional amounts payable pursuant to this Section agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
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If the Borrower or a relevant Obligor fails to pay any Covered Taxes when due to the appropriate taxing authority or fails to remit to the Facility Agent for the account of the respective Lenders the required receipts or other required documentary evidence, the Borrower shall indemnify the Lenders for any incremental withholding Covered Taxes, interest or penalties that may become payable by any Lender as a result of any such failure (so long as such amount did not become payable as a result of the failure of such Lender to provide timely notice to the Borrower of the assertion of a liability related to the payment of Covered Taxes). For purposes of this Section 4.6, a distribution hereunder by the Facility Agent or any Lender to or for the account of any Lender shall be deemed a payment by the Borrower.
If any Lender is entitled to any refund, credit, deduction or other reduction in tax by reason of any payment made by the Borrower or a relevant Obligor in respect of any Covered Tax under this Section 4.6 or by reason of any payment made by the Borrower or a relevant Obligor 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 or a relevant Obligor such amount (plus any interest received by such Lender in connection with such refund, credit, deduction or reduction) as is equal to the net after-tax value to such Lender of such part of such refund, credit, deduction or reduction as such Lender reasonably determines is allocable to such Covered Tax or such payment (less out-of-pocket expenses incurred by such Lender), provided that no Lender shall be obligated to disclose to the Obligors any information regarding its tax affairs or tax computations.
Each Lender (and each Participant) agrees with each Obligor and the Facility Agent that it will (i) (a) provide to the Facility Agent and each Obligor an appropriately executed copy of Internal Revenue Service ("IRS") Form W-9 (or any successor form) certifying the status of such Lender or such Participant as a US person, IRS Form W-8ECI (or any successor form) 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 IRS Form W-8BEN (or any successor form) claiming the benefits of a tax treaty (but only if the applicable treaty described in such form provides for a complete exemption from U.S. federal income tax withholding), or any successor form, on or prior to the date hereof (or, in the case of any Assignee Lender or Participant, on or prior to the date of the relevant assignment or participation), in each case attached to an IRS Form W-8IMY (or any successor form), if appropriate, (b) notify the Facility Agent and each Obligor if the certifications made on any form provided pursuant to this paragraph are no longer accurate and true in all material respects and (c) provide such other tax forms or other documents as shall be prescribed by applicable law, if any, or as otherwise reasonably requested, to demonstrate, to the extent applicable, the status of such Lender Party (or Participant) or that payments to such Lender Party (or Participant) hereunder are exempt from withholding under FATCA, and (ii) in all cases, provide such forms, certificates or other documents, as and when reasonably requested by any Obligor, necessary to claim any applicable exemption from, or reduction of, Covered Taxes, a FATCA Deduction or any payments made to or for benefit of such Lender Party or such Participant, provided that the Lender Party or Participant is legally able to deliver such forms, certificates or other documents. For any period with respect to which a Lender (or Assignee Lender or Participant) has failed to provide the Obligors with the foregoing forms (other than if such failure is due to a change in law occurring after the date on which a form originally was required to be provided (which, in the case of an
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Assignee Lender, would be the date on which the original assignor was required to provide such form) or if such form otherwise is not required hereunder) such Lender (or Assignee Lender or Participant) shall not be entitled to the benefits of this Section 4.6 with respect to Covered Taxes imposed by reason of such failure.
SECTION 4.7. Reserve Costs.
Without in any way limiting the Borrower's obligations under Section 4.3, the Borrower shall, on and after the date on which the Borrower elects the Floating Rate pursuant to Section 3.4.2, pay to the Facility Agent for the account of each Lender on the last day of each Interest Period, so long as the relevant Lending Office of such Lender is required to maintain reserves against "Eurocurrency liabilities" under Regulation D of the F.R.S. Board, upon notice from such Lender, an additional amount equal to the product of the following for the Loan for each day during such Interest Period:
(a)    the principal amount of the Loan outstanding on such day; and
(b)    the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on the Loan for such Interest Period as provided in this Agreement (less, if applicable, the applicable Floating Rate Margin) and the denominator of which is one minus any increase after the Effective Date in the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender minus (y) such numerator; and
(c)    1/360.
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 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to avoid the requirement of maintaining such reserves (including by designating a different Lending Office) if such efforts would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 4.8. Payments, Computations, etc.
(a)    Unless otherwise expressly provided in this Agreement or any other Loan Document, all payments by an Obligor in respect of amounts of principal, interest and fees or any other applicable amounts owing to the Lenders under any Loan Document shall be made by such Obligor to the Facility Agent for the account of the Lenders (or, in respect of (i) the Increase Tranche and amounts payable thereunder, the Increase Lenders and (ii) the Loan excluding the Increase Tranche and amounts payable thereunder, the Lenders in respect of that portion of the Loan) entitled to receive such payments and ratably in accordance with the respective
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amounts then due and payable to the Lenders. All such payments required to be made to the Facility Agent shall be made, without set-off, deduction or counterclaim, not later than 11:00 a.m., New York time, on the date due, in same day or immediately available funds through the New York Clearing House Interbank Payments System (or such other funds as may be customary for the settlement of international banking transactions in Dollars, or as the case may be, EUR), to such account as the Facility Agent shall specify from time to time by notice to the Obligors. Funds received after that time shall be deemed to have been received by the Lenders on the next succeeding Business Day.
(b)    
i.    Each Option A Lender hereby instructs the Facility Agent to remit all payments of interest made with respect to any portion of the Loan held by such Option A Lender to KfW (A) less (x) the applicable Fixed Rate Margin and (y) the CIRR administrative fee of 0.20% but plus (z) an agreed KfW margin, if interest on the portion of the Loan made by that Lender is then calculated at the Fixed Rate, or (B) less (x) the applicable Floating Rate Margin but plus (y) an agreed KfW margin, if interest on that portion of the Loan is then calculated at the Floating Rate.
ii.    Each Option B Lender hereby instructs the Facility Agent, with respect to any portion of the Loan held by such Option B Lender, to pay directly to such Option B Lender interest thereon at the Fixed Rate or the Floating Rate (whichever is applicable), on the basis that, if interest on such portion of the Loan is then calculated at the Fixed Rate, such Option B Lender will, where amounts are payable to KfW by that Option B Lender under the CIRR Agreement, account directly to KfW on behalf of the Federal Republic of Germany for any such amounts payable by that Lender under the CIRR Agreement to which such Lender is a party.
(c)    The Facility Agent shall promptly (but in any event on the same Business Day that the same are received or, as contemplated in clause (a) of this Section, deemed received) remit in same day funds to each Lender its share, if any, of such payments received by the Facility Agent for the account of such Lender without any set-off, deduction or counterclaim. All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days. Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall (except as otherwise required by clause (a) of the definition of the term "Interest Period") 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.
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SECTION 4.9. Replacement Lenders, etc.
If the Borrower or a relevant Obligor shall be required to make any payment to any Lender pursuant to Section 4.2(c), 4.3, 4.4, 4.5, 4.6 or 4.7, the Borrower shall be entitled at any time (so long as no Default and no Prepayment Event shall have occurred and be continuing) within 180 days after receipt of notice from such Lender of such required payment to (a) terminate such Lender's Commitment (whereupon the Percentage of each other Lender shall automatically be adjusted to an amount equal to such Lender's ratable share of the remaining Commitments), (b) prepay the affected portion of such Lender's Loan in full, together with accrued interest thereon through the date of such prepayment (provided that the Borrower shall not terminate any Lender's Commitment pursuant to clause (a) or prepay any such Lender pursuant to this clause (b) without replacing such Lender pursuant to the following clause (c) until a 30-day period shall have elapsed during which the Borrower and the Facility Agent shall have attempted in good faith to replace such Lender), and/or (c) replace such Lender with one or more financial institutions (I) reasonably acceptable to the Facility Agent, (II) meeting the criteria set out in Section 2.2 of the Terms and Conditions, (III) acceptable to Hermes and (IV) in the case of a replacement of an Option A Lender, reasonably acceptable to KfW; provided that (x) in the case of a single assignment, any such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or, in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement and (y) no Lender shall be obligated to make any such assignment pursuant to this Section 4.9 unless and until such Lender shall have received one or more payments from one or more Assignee Lenders and/or the Borrower in an aggregate amount at least equal to the portion of the Loan held by such Lender, together with all unpaid interest and fees thereon accrued to but excluding the date of such assignment (and all other amounts then owing to such Lender under this Agreement). Each Lender represents and warrants to each Obligor 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.
SECTION 4.10. Sharing of Payments
SECTION 4.10.1. Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount from the Borrower or an Obligor other than in accordance with Section 4.8 (Payments, Computations, etc.) (a "Recovered Amount") and applies that amount to a payment due under the Loan Documents then:
(a)    the Recovering Lender shall, within three (3) Business Days, notify details of the receipt or recovery to the Facility Agent;
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(b)    the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Lender would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with the said Section 4.8, without taking account of any taxes which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
(c)    the Recovering Lender shall, within three (3) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Lender as its share of any payment to be made, in accordance with any applicable provisions of this Agreement.
SECTION 4.10.2. Redistribution of payments
The Facility Agent shall treat the Sharing Payment as if it had been paid by the Borrower and distribute it between the Lenders (other than the Recovering Lender) (the "Sharing Lenders") in accordance with Section 4.8 of this Agreement towards the obligations of the Borrower to the Sharing Lenders.
SECTION 4.10.3. Recovering Lender's rights
On a distribution by the Facility Agent under Section 4.10.2 of a payment received by a Recovering Lender from the Borrower or relevant Obligor, solely as between the Borrower or relevant Obligor and the Recovering Lender, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by the Borrower or relevant Obligor.
SECTION 4.10.4. Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering Lender becomes repayable to the Borrower or relevant Obligor and is repaid by that Recovering Lender to the Borrower or relevant Obligor, then:
(a)    each Sharing Lender shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Lender an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Sharing Payment which that Recovering Lender is required to pay) (the "Redistributed Amount"); and
(b)    solely as between the Borrower or relevant Obligor and each relevant Sharing Lender, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by the Borrower or relevant Obligor.
SECTION 4.10.5. Exceptions
(a)    This Section 4.10 shall not apply to the extent that the Recovering Lender would not, after making any payment pursuant to this Section 4.10, have a valid and enforceable claim against the Borrower or relevant Obligor.
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(b)    A Recovering Lender is not obliged to share with any other Lender any amount which the Recovering Lender has received or recovered as a result of taking legal or arbitration proceedings, if:
i.    it notified the other Lender of the legal or arbitration proceedings; and
ii.    the other Lender had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
SECTION 4.11. Set-off
Upon the occurrence and during the continuance of an Event of Default or a Prepayment Event, each Lender shall have, to the extent permitted by applicable law, the right to appropriate and apply to the payment of the Obligations then due and owing to it any and all balances, credits, deposits, accounts or moneys of any Obligor 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 applicable Obligor and the Facility Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of set-off under applicable law or otherwise) which such Lender may have.
SECTION 4.12. Use of Proceeds
The Borrower shall apply the proceeds of the Loan in accordance with Section 2.4(c) and (d) and, in relation to the Disbursement Date, prior to such application, such proceeds shall be held in an account or accounts of the Facility Agent in accordance with the provisions of Section 2.4(c); without limiting the foregoing, no proceeds of the Loan will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or any "margin stock", as defined in F.R.S. Board Regulation U. If the proceeds of the Loan have not been paid either (A) to the Builder or its order in accordance with Section 2.4(d)(i) and to Hermes and the Borrower in accordance with Section 2.4(d)(ii) or (B) to the Facility Agent (directly or indirectly) in prepayment of the Loan under Sections 3.2(a) or 3.8 by 9:59 p.m. (London time) on the first Business Day after the Disbursement Date (where the Loan is denominated in EUR) or the second Business Day after the Disbursement Date (where the Loan is denominated in Dollars), such proceeds shall continue to be pledged by the Borrower upon receipt in accordance with Section 2.4(c) as collateral pursuant to the Pledge Agreement. On or prior to the date that is 15 days after the Disbursement Date, the Borrower shall notify the Facility Agent whether the proceeds of the Loan are to be returned to the Facility Agent as prepayment in accordance with Section 3.8 or to be held as cash collateral in the Pledged Account pursuant to the Pledge Agreement until the earlier of (A) disbursement in accordance with Section 2.4(d) or (B) prepayment of the Loan pursuant to Sections 3.2(a) or 9.2.
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SECTION 4.13. FATCA Deduction
(a)     Each party to the Agreement may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no party to the Agreement shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
(b)    Each party to the Agreement shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the other party to the Agreement to whom it is making the payment and, in addition, shall notify the Borrower and the Facility Agent, and the Facility Agent shall notify the other parties to the Agreement.
SECTION 4.14. FATCA Information.
(a)    Subject to paragraph (c) below, each party (other than the Borrower) shall, within ten (10) Business Days of a reasonable request by another party (other than the Borrower):
(i)    confirm to that other party whether it is:
(A)    a FATCA Exempt Party; or
(B)    not a FATCA Exempt Party;
(ii)    supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other party's compliance with FATCA;
(iii)    supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other party's compliance with any other law, regulation, or exchange of information regime.
(b)    If a party confirms to another party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.
(c)    Paragraph (a) above shall not oblige any Lender or the Facility Agent to do anything, and paragraph (a)(iii) above shall not oblige any other party to do anything, which would or might in its reasonable opinion constitute a breach of:
(i)    any law or regulation;
(ii)    any fiduciary duty; or
(iii)    any duty of confidentiality.
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(d)    If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such party shall be treated for the purposes of the Loan Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.
(e)     If the Borrower becomes a US Tax Obligor or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
(i)    where the Borrower is a US Tax Obligor and the relevant Lender is KfW IPEX, the date of this Agreement;
(ii)    where the Borrower is a US Tax Obligor on a date an assignment or transfer is made pursuant to Section 11.11.1 and the relevant Lender is an Assignee Lender that becomes a Lender in accordance with Section 11.11.1, the date on which such Assignee Lender becomes a Lender;
(iii)    where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
supply to the Facility Agent:
(A)    a withholding certificate on Form W-8 (or any successor form), Form W-9 (or any successor form) or any other relevant form; or
(B)    any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
(f)    The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.
(g)    If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower.
(h)    The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant
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to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.
SECTION 4.15. Resignation of the Facility Agent.
The Facility Agent shall resign (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent) if, either:
(a)    the Facility Agent fails to respond to a request under Section 4.14 and the Borrower or a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
(b)    the information supplied by the Facility Agent pursuant to Section 4.14 indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party; or
(c)    the Facility Agent notifies the Borrower and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party,
and (in each case) the Borrower or a Lender reasonably believes that a party to this Agreement will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and the Borrower or that Lender, by notice to the Facility Agent, requires it to resign.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Advance of the Loan.
The obligation of the Lenders to fund all or any portion of the Loan on the Disbursement Date shall be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in this Section 5.1. The Facility Agent shall advise the Lenders of the satisfaction of the conditions precedent set forth in this Section 5.1 prior to funding on the Disbursement Date.
SECTION 5.1.1. Resolutions, etc.
The Facility Agent shall have received from the Borrower:
(a)    a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Agreement and each other Loan Document to which it is respectively a party and as to the truth and completeness of the attached:
i.    resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Agreement and each other Loan Document to which it is respectively a party, and
ii.    its Organic Documents,
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and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the Borrower cancelling or amending such prior certificate; and
(b)    a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the Borrower.
SECTION 5.1.2. Opinions of Counsel.
The Facility Agent shall have received opinions, addressed to the Facility Agent and each Lender from:
(a)    Watson, Farley & Williams LLP, counsel to the Borrower, as to Liberian Law, covering the matters set forth in Exhibit B-2 hereto;
(b)    Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders, covering the matters set forth in Exhibit B-3 hereto;
(c)    Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders as to German law, an opinion addressed to the Facility Agent and the Lenders covering the matters set forth in Exhibit B-4 hereto;
(d)    Clifford Chance US LLP, United States tax counsel to the Facility Agent for the benefit of Lenders, covering the matters set forth in Exhibit B-5 hereto; and
(e)    if requested by a Lender at least 120 days prior to the expected Disbursement Date in order to comply with Article 194 of the Regulation (EU) No 575/2013 (CRR), a single legal opinion (for the benefit of all the Lenders notwithstanding that not all the Lenders have requested the same) on matters of German law related to the validity and enforceability of the Hermes Insurance Policy,
each such opinion to be updated to take into account all relevant and applicable Loan Documents at the time of issue thereof.
SECTION 5.1.3. Hermes Insurance Policy.
(a)    The Facility Agent or the Hermes Agent shall have received the Hermes Insurance Policy duly issued; and
(b)    Hermes shall not have, prior to the advance of the Loan, delivered to the Facility Agent or the Hermes Agent any notice that the Federal Republic of Germany has determined that the Loan (or any part of it) is excluded from cover under the Hermes Insurance Policy.
SECTION 5.1.4. Closing Fees, Expenses, etc.
The Facility Agent shall have received for its own account, or for the account of each Lender, as the case may be, all fees that the Borrower shall have agreed in writing to pay to the
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Facility Agent (whether for its own account or for the account of any of the Lenders) that are due and owing as of the date of such funding and all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent and the Hermes Fees) required to be paid by the Borrower pursuant to Section 11.3 or that the Borrower has otherwise agreed in writing to pay to the Facility Agent, in each case on or prior to the date of such funding.
SECTION 5.1.5. Compliance with Warranties, No Default, etc.
Both before and after giving effect to the funding of the Loan the following statements shall be true and correct:
(a)    the representations and warranties set forth in Article VI (excluding, however, those set forth in Section 6.10) shall be true and correct in all material respects except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, with the same effect as if then made; and
(b)    no Default and no Prepayment Event and no event which (with notice or lapse of time or both) would become a Prepayment Event shall have then occurred and be continuing.
SECTION 5.1.6. Loan Request.
The Facility Agent shall have received a Loan Request duly executed by the Borrower together with:
(a)    certified as true (by the Builder) copies of the reimbursement request and supporting documents received by the Builder from the Borrower pursuant to Article XVII.1(b) of the Construction Contract in relation to the incurred Buyer's Allowance;
(b)    a copy of the final invoice from the Builder showing the amount of the Contract Price (including the Buyer's Allowance) and the portion thereof payable to the Builder on the Delivery Date under the Construction Contract; and
(c)    appropriate evidence of all payments made by the Borrower to the Builder on or prior to the Disbursement Date under the Construction Contract in respect of the Contract Price (including, without limitation, the twenty per cent (20%) equity payment thereunder).
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations.
Where the Loan is denominated in Dollars, the Facility Agent shall have received a copy of each foreign exchange counterparty confirmation entered into by the Borrower in respect of the payment of the instalments of the Contract Price (other than that relating to the Buyer's Allowance).
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SECTION 5.1.8. Pledge Agreement.
The Pledge Agreement shall be duly executed by the parties thereto and delivered to the Facility Agent on or prior to the Disbursement Date.

ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Facility Agent to enter into this Agreement and to make the Loan hereunder, each of the Borrower represents and warrants to the Facility Agent and each Lender with respect to itself as set forth in this Article VI as of the Effective Date, Disbursement Date and on the Security Enhancement Guarantee Release Date (except as otherwise stated).
SECTION 6.1. Organisation, etc.
Each Obligor is a corporation or company validly organised and existing and in good standing under the laws of its jurisdiction of incorporation; each Obligor is duly qualified to do business and is in good standing as a foreign corporation or company 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 each Obligor 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 to which it is a party and to perform the Obligations.
SECTION 6.2. Due Authorisation, Non-Contravention, etc.
The execution, delivery and performance by each Obligor of this Agreement and each other Loan Document to which it is a party are within each Obligor's corporate powers, have been duly authorised by all necessary corporate action, and do not:
(a)    contravene that Obligor's Organic Documents;
(b)    contravene any law or governmental regulation of any Applicable Jurisdiction except as would not reasonably be expected to result in a Material Adverse Effect;
(c)    contravene any court decree or order binding on an Obligor or any of its property except as would not reasonably be expected to result in a Material Adverse Effect;
(d)    contravene any contractual restriction binding on an Obligor or any of its property except as would not reasonably be expected to result in a Material Adverse Effect; or
(e)    result in, or require the creation or imposition of, any Lien on any of an Obligor's properties except: (i) as would not reasonably be expected to result in a Material Adverse Effect or (ii) Liens created under the Loan Documents.
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SECTION 6.3. Government Approval, Regulation, etc.
No authorisation 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 any Obligor of this Agreement or any other Loan Document to which it is a party (except for authorisations or approvals not required to be obtained on or prior to the Disbursement Date or that have been obtained or actions not required to be taken on or prior to the Disbursement Date or that have been taken). Each Obligor holds all governmental licenses, permits and other approvals required to conduct its business as conducted by it on the Disbursement 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 Laws.
(a)    Each Obligor is in compliance with all applicable laws, rules, regulations and orders, except to the extent that the failure to so comply does not and would not reasonably be expected to have a Material Adverse Effect.
(b)    The Borrower has implemented and maintains in effect policies and procedures designed to procure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The Borrower and its Subsidiaries and, to the knowledge of the Borrower, its respective officers, employees, directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions, in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in an Obligor being designated as a Sanctioned Person. None of (i) the Borrower, any Subsidiary or to the knowledge of the Borrower or such Subsidiary any of their respective directors, officers or employees, or (ii) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.
(c)    Each Obligor is in compliance with all applicable Environmental Laws, except to the extent that the failure to so comply would not have a Material Adverse Effect.
SECTION 6.5. Validity, etc.
This Agreement constitutes the legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally or by general equitable principles.
SECTION 6.6. No Default, Event of Default or Prepayment Event.
No Default, Event of Default or Prepayment Event has occurred and is continuing.
SECTION 6.7. Litigation.
There is no action, suit, litigation, investigation or proceeding pending or, to the knowledge of the Borrower, threatened against the Obligors, that (i) except as set forth in filings
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made by the Borrower with the SEC in the Borrower’s reasonable opinion might reasonably be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries (taken as a whole) (collectively, "Material Litigation") or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation of the transactions contemplated hereby.
SECTION 6.8. The Purchased Vessel.
Immediately following the delivery of the Purchased Vessel to Silversea Cruise Holding Ltd. under the Construction Contract, the Purchased Vessel will be:
(a)    legally and beneficially owned by Silversea Cruise Holding Ltd. or one of Silversea Cruise Holding Ltd.'s or the Borrower’s wholly owned Subsidiaries,
(b)    registered in the name of Silversea Cruise Holding Ltd. or one of Silversea Cruise Holding Ltd.'s or the Borrower’s wholly owned Subsidiaries under the Bahamian or Maltese flag or such other flag as the parties may mutually agree,
(c)    classed as required by Section 7.1.4(b),
(d)    free of all recorded Liens, other than Liens permitted by Section 7.2.3,
(e)    insured against loss or damage in compliance with Section 7.1.5, and
(f)    exclusively operated by or chartered to Silversea Cruise Holding Ltd. or one of Silversea Cruise Holding Ltd.'s or the Borrower’s wholly owned Subsidiaries.
SECTION 6.9. 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 each Obligor other than Indebtedness preferred as a matter of law.
SECTION 6.10. Withholding, etc..
As of the Effective Date, no payment to be made by any Obligor under any Loan Document is subject to any withholding or like tax imposed by any Applicable Jurisdiction.
SECTION 6.11. No Filing, etc. Required.
No filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of any Applicable Jurisdiction to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Agreement or the other Loan Documents (except for filings, recordings, registrations or payments not required to be made on or prior to the Disbursement Date or that have been made).
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SECTION 6.12. No Immunity.
Each Obligor is subject to civil and commercial law with respect to the Obligations. Neither Obligor nor any of its properties or revenues is entitled to any right of immunity in any Applicable Jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to the Obligations (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted or exist).
SECTION 6.13. Investment Company Act.
Neither Obligor is required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
SECTION 6.14. Regulation U.
Neither Obligor is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of the Loan will be used for a purpose which violates, or would be inconsistent with, F.R.S. Board Regulation U. Terms for which meanings are provided in F.R.S. Board Regulation U or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
SECTION 6.15. Accuracy of Information.
(a)    The financial and other information (other than financial projections or other forward looking information) furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower and the Original Borrower by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Borrower, true and correct and contains no misstatement of a fact of a material nature. All financial projections, if any, that have been furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with this Agreement have been or will be prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the projections will be realised). All financial and other information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Borrower in good faith.
(b)    The financial and other information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Borrower, true and correct and contains no misstatement of a fact of a material nature. All financial and other
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information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Borrower in good faith.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants.
The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date (or, where applicable, from such time as may be stated in any applicable provision below) until all Commitments have terminated and all Obligations have been paid in full, the Obligors will perform the obligations applicable to it set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, Poseidon Principles etc.
The Borrower will furnish, or will cause to be furnished, to the Facility Agent (with sufficient copies for distribution to each Lender) the following financial statements, reports, notices and information:
(a)    as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, a copy of the Borrower’s report on Form 10-Q (or any successor form) as filed by the Borrower with the SEC for such Fiscal Quarter, containing unaudited consolidated financial statements of the Borrower for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
(b)    as soon as available and in any event within 120 days after the end of each Fiscal Year of a copy of the Borrower’s annual report on Form 10-K (or any successor form) as filed by the Borrower with the SEC for such Fiscal Year, containing audited consolidated financial statements of the Borrower for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLP or another firm of independent public accountants of similar standing;
(c)    together with each of the statements delivered pursuant to the foregoing clause (a) or (b), a certificate, executed by the chief financial officer, the treasurer or the corporate controller of the Borrower, showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year compliance with the covenants set forth in Section 7.2.4 (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
(d)    as soon as possible after the occurrence of a Default or Prepayment Event, a statement of the chief financial officer of the Borrower setting forth details of such
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Default or Prepayment Event (as the case may be) and the action which the Borrower has taken and proposes to take with respect thereto;
(e)    as soon as the Borrower becomes aware thereof, notice of any Material Litigation except to the extent that such Material Litigation is disclosed by the Borrower in filings with the SEC;
(f)    promptly after the sending or filing thereof, copies of all reports which the Borrower sends to all holders of each security issued by the Borrower, and all registration statements which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange;
(g)    such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its respective Subsidiaries as any Lender through the Facility Agent may from time to time reasonably request;
(h)    on or before the later of (i) 31 July and (ii) 30 days after its own receipt of a Statement of Compliance in each calendar year, supply, or procure the supply, to the Facility Agent (for distribution to Hermes and the Lenders) (in each case at the cost of the Borrower) of all information necessary in order for any Lender to comply with its obligations under the Poseidon Principles in respect of the preceding year, including, without limitation, all ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI (as collated and reported to the Purchased Vessel’s flag state using the verification report submitted to that flag state) and any Statement of Compliance, in each case relating to the Purchased Vessel for the preceding calendar year, provided always that such information shall be confidential information for the purposes of Section 11.15 and, accordingly, no Lender shall publicly disclose such information with the identity of the Purchased Vessel, the Borrower (or, if applicable, the Borrower’s wholly owned Subsidiary that then owns the Purchased Vessel) without the prior written consent of the Borrower (it being expressly agreed however that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the relevant Lender’s portfolio climate alignment);
(i)    during the Financial Covenant Waiver Period, as soon as available and in any event within respectively five (5), ten (10) and forty (40) days (or such other period as Hermes or the Lenders may require from time to time) after the end of each monthly, bi-monthly and quarterly period (save that the period in respect of the final quarter of each Fiscal Year shall be sixty (60) days) from the Amendment Two Effective Date, the information required by the Debt Deferral Extension Regular Monitoring Requirements (as such information requirements may be amended on the basis set out in the Debt Deferral Extension Regular Monitoring Requirements) (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
(j)    during the Financial Covenant Waiver Period, upon the request of the Hermes Agent (acting on the instructions of Hermes), the Borrower and the Lenders shall
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provide information in form and substance satisfactory to Hermes regarding arrangements in respect of Indebtedness for borrowed money of the Group then existing or any such Indebtedness to be incurred by or made available to (as the case may be) the Group pursuant to binding commitments (such information to be provided to Hermes in accordance with terms of the Hermes Agent’s request);
(k)    during the period from the Amendment Two Effective Date until the Covenant Modification Date, within five Business Days after the end of each month falling during such period, 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 immediately preceding month, compliance with the covenant set forth in Section 7.2.4(C); provided that if, during such period, the Borrower is not in compliance with the covenant set forth in Section 7.2.4(C) as of the last day of such month, the Borrower shall show compliance with such covenant as of the date such certificate is delivered;
(l)    within 15 Business Days of the end of each month throughout the Early Warning Monitoring Period that falls within the Financial Covenant Waiver Period, 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 month (i) the ratio of Adjusted Cash Balance as of the last day of the most recently completed month to the Monthly Outflow for the month most recently ended (and showing whether the Adjusted Cash Balance covers the Monthly outflow for at least the subsequent five-month period) and (ii) the Borrower’s Adjusted EBITDA after Interest for the two consecutive Last Reported Quarters (in each case in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
(m)    if the Borrower intends to make a Restricted Voluntary Prepayment, not less than ten Business Days prior to the anticipated making of a Restricted Voluntary Prepayment, the Borrower shall provide written notice to the Facility Agent of that Restricted Voluntary Prepayment (which notice shall set out in reasonable detail the terms of that Restricted Voluntary Prepayment);
(n)    during the Financial Covenant Waiver Period, as soon as the Borrower becomes aware thereof, notice (with a copy to the Hermes Agent and Hermes) of any matter that has, or may, result in a breach of Section 7.1.11; and
(o)    during the Financial Covenant Waiver Period, on one occasion during each calendar year, the environmental plan of the Borrower (and including the Group’s carbon emissions for the past two years (calculated according to methodologies defined by the IMO or any other public methodology specified by the Borrower)) as required to be published pursuant to the letter of the Borrower issued pursuant to Amendment Number Two,
provided that information required to be furnished to the Facility Agent under subsections (a), (b), (f) and (o) of this Section 7.1.1 shall be deemed furnished to the Facility Agent when
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available free of charge on the Borrower’s website at http://www.rclinvestor.com or the SEC’s website at http://www.sec.gov.
SECTION 7.1.2. Approvals and Other Consents.
Each Obligor will obtain (or cause to be obtained) all such governmental licenses, authorisations, consents, permits and approvals as may be required for that Obligor to perform its obligations under this Agreement and the other Loan Documents to which it is a party and the Borrower will obtain (or cause to be obtained) all such governmental licenses, authorisations, consents, permits and approvals as may be required for the operation of the Purchased Vessel in compliance with all applicable laws, except, in each case, to the extent that failure to obtain (or cause to be obtained) such governmental licenses, authorisations, consents, permits and approvals would not be expected to have a Material Adverse Effect.
SECTION 7.1.3. Compliance with Laws, etc.
Each Obligor will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, except (other than as described in clause (a) below) to the extent that the failure to so comply would not have a Material Adverse Effect, which compliance shall in any case include (but not be limited to):
(a)    in the case of each Obligor, the maintenance and preservation of its corporate existence (subject to the provisions of Section 7.2.5);
(b)    in the case of the Borrower, maintenance of its qualification as a foreign corporation in the State of Florida;
(c)    the payment, before the same become delinquent, of all taxes, assessments and governmental charges imposed upon it or upon its property, except to the extent being diligently contested in good faith by appropriate proceedings;
(d)    compliance with all applicable Environmental Laws;
(e)    compliance with all anti-money laundering laws and Anti-Corruption Laws applicable to each Obligor, including by not making or causing to be made any offer, gift or payment, consideration or benefit of any kind to anyone, either directly or indirectly, as an inducement or reward for the performance of any of the transactions contemplated by this Agreement to the extent the same would be in contravention of such applicable laws; and
(f)    the Borrower will maintain in effect policies and procedures designed to procure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
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SECTION 7.1.4. The Purchased Vessel.
The Borrower will:
(a)    from the Delivery Date, cause the Purchased Vessel to be exclusively operated by Silversea Cruise Holding Ltd. or chartered to the Borrower or one of Silversea Cruise Holding Ltd.'s or the Borrower’s wholly owned Subsidiaries, provided that Silversea Cruise Holding Ltd. or such Subsidiary may charter out the Purchased Vessel (i) to entities other than Silversea Cruise Holding Ltd. and it's wholly owned Subsidiaries or the Borrower or its wholly owned Subsidiaries and (ii) on a time charter with a stated duration not in excess of one year;
(b)    (in relation to the Borrower only) from the Delivery Date, cause the Purchased Vessel to be kept in such condition as will entitle her to classification by a classification society of recognised standing;
(c)    (in relation to the Borrower only) on the Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
(i)    evidence (in the form of a builder's certificate or bill of sale) as to the ownership of the Purchased Vessel by the Original Borrower or one of the Original Borrower's or the Borrower’s wholly owned Subsidiaries;
(ii)    evidence of no recorded Liens on the Purchased Vessel, other than Liens permitted pursuant to Section 7.2.3;
(iii)    a copy of the protocol of delivery and acceptance in respect of the Purchased Vessel signed by the Builder and the Original Borrower, certified as a true and complete copy by an Authorised Officer of the Borrower; and
(iv)    copies of the wire transfers for all payments by the Original Borrower to the Builder in respect of the amount of any change orders arising under the Construction Contract which the Original Borrower is required to pay to the Builder on the Delivery Date; and
(d)    within seven days after the Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
(v)    evidence of the class of the Purchased Vessel; and
(vi)    evidence as to all required insurance being in effect with respect to the Purchased Vessel.
SECTION 7.1.5. Insurance.
The Borrower will, from the Delivery Date, maintain or cause to be maintained with responsible insurance companies insurance with respect to the Purchased Vessel against such casualties, third-party liabilities and contingencies and in such amounts, in each case, as is
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customary for other businesses of similar size in the passenger cruise line industry (provided that in no event will the Borrower or any Subsidiary be required to obtain any business interruption, loss of hire or delay in delivery insurance) and will, upon request of the Facility Agent, furnish to the Facility Agent (with sufficient copies for distribution to each Lender) at reasonable intervals a certificate of a senior officer of the Borrower setting forth the nature and extent of all insurance maintained by the Borrower and certifying as to compliance with this Section.
SECTION 7.1.6. Books and Records.
The Borrower will keep books and records that accurately reflect all of its business affairs and transactions and permit the Facility Agent and each Lender or any of their respective representatives, at reasonable times and intervals and upon reasonable prior notice, to visit each of its offices, to discuss its financial matters with its officers and to examine any of its books or other corporate records.
SECTION 7.1.7. Hermes Insurance Policy/Federal Republic of Germany Requirement.
Each Obligor shall, on the reasonable request of the Hermes Agent or the Facility Agent, provide such other information as required under the Hermes Insurance Policy and/or the Terms and Conditions as necessary to enable the Hermes Agent or the Facility Agent to obtain the full support of Hermes and/or the government of the Federal Republic of Germany (as the case may be) pursuant to the Hermes Insurance Policy and/or the Terms and Conditions (as the case may be). The Borrower shall pay to the Hermes Agent or the Facility Agent the amount of all reasonable costs and expenses reasonably incurred by the Hermes Agent or the Facility Agent in connection with complying with a request by Hermes or the government of the Federal Republic of Germany (as the case may be) for any additional information necessary or desirable in connection with the Hermes Insurance Policy or the Terms and Conditions (as the case may be); provided that the Borrower is consulted before the Hermes Agent or KfW incurs any such cost or expense.
The Lenders shall not take any action that: (a) would have an adverse effect on the Hermes Insurance Policy; (b) would adversely impact the effectiveness of the Hermes Insurance Policy; or (c) would amend or otherwise modify the terms of the Hermes Insurance Policy in a manner that would impact any of the rights and obligations of the Obligors under this Agreement, other than in accordance with, or as contemplated by, the terms of this Agreement or as may be requested by the Borrower.
SECTION 7.1.8. Notice of written amendments to Construction Contract.
The Borrower shall furnish to the Facility Agent, as soon as practicable after such amendment or modification is entered into, notice of any written amendment to or written modification of the Construction Contract (other than upward or downward adjustments resulting from change orders effected as contemplated by the express terms of the Construction Contract) that (i) relates to the amount of the Contract Price, (ii) relates to the date on which the Purchased Vessel is to be delivered or (iii) (either by itself or when aggregated with earlier amendments or
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modifications, if any) results in a decrease in the dimensions or capacity of the Purchased Vessel in terms of the number of passengers and/or staterooms by more than five per cent (5%), in each case to the extent that any of the same do not require approval pursuant to Section 7.2.7.
SECTION 7.1.9. Further assurances in respect of the Framework.
During the Financial Covenant Waiver Period, the Borrower will from time to time at the request of the Facility Agent promptly enter into good faith negotiations in respect of (a) amending this Agreement to remove the carve-out of Section 7.2.4 from the provisions of Section 9.1.4 and/or (b) amending the financial covenants set forth in this Agreement, resetting the testing of such financial covenants and/or supplementing those financial covenants with additional financial covenants. A failure to reach an agreement under this paragraph following such good faith negotiations shall not constitute an Event of Default or a Prepayment Event.
SECTION 7.1.10. Equal treatment with Pari Passu Creditors.
The Borrower undertakes with the Facility Agent that it shall ensure (and shall procure that each other Group Member shall ensure) that the Lenders are treated equally in all respects with all other Pari Passu Creditors, and accordingly:
(a)    the Borrower shall enter into similar covenant amendment and replacement and mandatory prepayment arrangements to those contemplated by Amendment Number Two in respect of each ECA Financing (and for this purpose excluding any ECA Financings where the lenders under that ECA Financing do not provide their consent to such arrangements in circumstances where the arrangements contemplated in respect of that ECA Financing are on substantially the same basis as set out in this Agreement (as amended by Amendment Number Two) but including any financing which will, upon novation of the relevant facility agreement to the Borrower, become an ECA Financing) as soon as reasonably practicable after the Amendment Two Effective Date (with such amendments being on terms which shall not prejudice the rights of Hermes under this Agreement and the Builder under the Construction Contract);
(b)    the Borrower shall promptly upon written request, supply the Facility Agent and the Hermes Agent with information (in a form and substance satisfactory to the Facility Agent and Hermes Agent) regarding the status of the amendments to be entered into in accordance with paragraph (a) above;
(c)    to enable the Borrower to comply with the requirements under paragraph (d) below, prior to any Group Member entering into any Restricted Credit Enhancement with a Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.10(a)(ii)), the Borrower shall promptly notify the Facility Agent (and such notification shall include details of the new Lien or Group Member Guarantee and shall otherwise be in form and substance reasonably satisfactory to the Facility Agent); and
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(d)    at the same time as any relevant Restricted Credit Enhancement is provided to the relevant Pari Passu Creditor (other than a Restricted Credit Enhancement granted in accordance with Section 7.2.10(a)(ii)), the Borrower, any relevant Group Member and the Lenders shall enter into such documentation as may be necessary in the reasonable opinion of the Facility Agent to ensure that the Lenders benefit from that Restricted Credit Enhancement on the same terms as the relevant Pari Passu Creditor(s) and, where that Restricted Credit Enhancement is a Lien or a Group Member Guarantee, to share in that Lien or Group Member Guarantee on a pari passu basis (and the Lenders agree to enter into such intercreditor documentation to reflect such pari passu ranking (in a form and substance satisfactory to the Lenders (acting reasonably)) as may be required in connection with such arrangements).
SECTION 7.1.11. Performance of shipbuilding contract obligations.
During the Financial Covenant Waiver Period, the Borrower shall (and shall procure that each of its Subsidiaries shall) comply with its contractual commitments under and in respect of (i) each shipbuilding contract in existence as at the Amendment Two Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into with the Builder and (ii) any option agreements or similar binding contractual commitments (whether in respect of a firm order of a vessel or otherwise) in existence at the Amendment Two Effective Date (or which comes into existence at any time during the Financial Covenant Waiver Period) entered into by the Borrower (or any of its Subsidiaries) and the Builder in connection with the potential entry into of a shipbuilding contract at a future point in time (it being agreed that such obligation shall not require the Borrower or the relevant Subsidiary (as applicable) to exercise any option or other contractual right thereunder), save that this Section 7.1.11 shall be subject to any amendment to any such shipbuilding contract, option agreement, contract or other related document if such amendment has, in consultation with the Hermes Agent (acting on the instructions of Hermes), been agreed between the Borrower or, as the case may be, relevant Subsidiary and the Builder.
SECTION 7.2. Negative Covenants.
The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date until all Commitments have terminated and all Obligations have been paid and performed in full, each Obligor will perform the obligations applicable to it set forth in this Section 7.2.
SECTION 7.2.1. Business Activities.
The Borrower will not, and will not permit any of its Subsidiaries to, engage in any principal business activity other than those engaged in by the Borrower and its Subsidiaries on the date hereof and other business activities reasonably related, ancillary or complementary thereto or that are reasonable extensions thereof.
SECTION 7.2.2. Indebtedness.
Until the occurrence of the Security Enhancement Guarantee Release Date (whereupon Section 7.2.2 of Exhibit P shall apply in accordance with Section 7.3), the Borrower will not
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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)    the obligations of the Original Borrower or its Subsidiaries in connection with those certain Bareboat Charterparties with respect to (i) the vessel SILVER EXPLORER dated July 22, 2011 between Silversea Cruises Ltd. and Hammonia Adventure and Cruise Shipping Company Ltd. and (ii) the vessel SILVER WHISPER dated March 15, 2012 between Whisper S.p.A. and various lessors, and the replacement, extension, renewal or amendment of each of the foregoing without increase in the amount or change in any direct or contingent obligor of such obligations;
(b)    Indebtedness arising pursuant to that certain Bareboat Charterparty dated May 17, 2018 by and between Hai Xing 1702 Limited and Silversea New Build Eight Ltd., as such agreement may be amended from time to time;
(c)    Indebtedness arising pursuant to a $300,000,000 facility agreement dated 7 June 2019 between, amongst others, the Original Borrower as borrower, the Borrower as guarantor and Nordea Bank ABP, New York branch as administrative agent;
(d)    Indebtedness secured by Liens of the type described in Section 7.2.3;
(e)    Indebtedness owing to the Borrower or a direct or indirect Subsidiary of the Borrower;
(f)    Indebtedness incurred to finance, refinance or refund the cost (including the cost of construction) of assets acquired after the Effective Date;
(g)    Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted to be secured under Section 7.2.3(f), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; and
(h)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes.
SECTION 7.2.3. Liens.
Until the occurrence of the Security Enhancement Guarantee Release Date (whereupon Section 7.2.2 of Exhibit P shall apply in accordance with Section 7.3), 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:
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(a)    Liens securing the $620 million in principal amount of 7.25% senior secured notes due 2025 issued by Silversea Cruise Finance Ltd. pursuant that that Indenture dated as of January 30, 2017;
(b)    Liens on the vessels SILVER WHISPER and SILVER EXPLORER existing as of the Effective Date and securing the Existing Silversea Leases (and any Lien on such vessels securing any refinancing of the Existing Silversea Leases, so long as such Vessel was subject to a Lien securing the Indebtedness being refinanced immediately prior to such refinancing);
(c)    Liens on the Vessel with Hull 6280 currently being built at Fincantieri S.p.A. and arising pursuant to that certain Bareboat Charterparty dated May 17, 2018 by and between Hai Xing 1702 Limited and Silversea New Build Eight Ltd., as such agreement may be amended from time to time (and any Lien on such vessel securing any refinancing of such bareboat charterparty);
(d)    Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Borrower after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Vessel, owns a Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
(e)    the Construction Mortgage but only to the extent that the same is discharged on the Delivery Date;
(f)    in addition to other Liens permitted under this Section 7.2.3, Liens securing Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted under Section 7.2.2(g), at any one time outstanding not exceeding (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such indebtedness, as applicable) (i) 10.0% of the total assets of the Borrower and its Subsidiaries (the "Lien Basket Amount") taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; provided, however that, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody's and S&P, the Lien Basket Amount shall be the greater of (x) 5.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter and (y) $735,000,000;
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(g)    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;
(h)    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;
(i)    Liens securing Government-related Obligations;
(j)    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;
(k)    Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue by more than 60 days or being diligently contested in good faith by appropriate proceedings;
(l)    Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance or other forms of governmental insurance or benefits;
(m)    Liens for current crew's wages and salvage;
(n)    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;
(o)    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 (l), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;
(p)    normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers' liens, rights of set-off or similar rights in favour of banks or other depository institutions;
(q)    Liens in respect of rights of set-off, recoupment and holdback in favour of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business;
(r)    Liens on cash or Cash Equivalents or marketable securities securing:
(i)    obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes; or
(ii)    letters of credit that support such obligations;
(s)    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
(t)    easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any of its Subsidiaries; and
(u)    licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries,
provided, however, that from the Amendment Two Effective Date until the Security Enhancement Guarantee Release Date, no Group Member shall be entitled to grant any Lien of the type referred to in paragraphs (d) to (g) over any ECA Financed Vessel.
SECTION 7.2.4. Financial Condition.
The Borrower will not permit:
(a)    Net Debt to Capitalisation Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1.
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(b)    Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter.
In addition, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moody's and S&P, the Borrower will not permit Stockholders' Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single accounting period, but in any event excluding any Fiscal Quarters for which the Borrower and its Subsidiaries have a consolidated net loss).
SECTION 7.2.4(A). Most favored lender with respect to Financial Covenants. During the Financial Covenant Waiver Period, if any Group Member agrees, in respect of any of its Indebtedness for borrowed money, to any new, modified or substitute financial covenants of the type or similar to the financial covenants set out in Section 7.2.4 above then (a) the Borrower shall notify the Facility Agent in writing within 5 Business Days of such new, modified or substitute financial covenants being agreed with the relevant creditor(s) and (b) if required by the Lenders, the Borrower and the Lenders shall, as soon as practicable thereafter, enter into an amendment to this Agreement to incorporate the new, modified or substitute financial covenants.
SECTION 7.2.4(B). Notification of change to financial covenants.     During the Financial Covenant Waiver Period, if other than as notified in writing by the Borrower to the Facility Agent prior to the date of Amendment Number Two, at any time during the Financial Covenant Waiver Period the last day of a financial covenant waiver period under any of the agreements in respect of any of the Borrower’s other Indebtedness shall be amended such that it falls prior to December 31, 2022, the Borrower shall notify the Facility Agent.
SECTION 7.2.4(C). Minimum liquidity.     The Borrower will not allow the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries as determined in accordance with GAAP to be less than the Adjustable Amount as of (a) the last day of any calendar month from the Amendment Two Effective Date until the Covenant Modification Date, or (b) if the Borrower is not in compliance with the requirements of this Section 7.2.4(C) as of the last day of any calendar month during the Financial Covenant Waiver Period (or, if earlier, prior to the Covenant Modification Date), the date that the certificate required by Section 7.1.1(k) with respect to such month is delivered to the Facility Agent (it being understood that the Borrower shall not be required to comply with this Section 7.2.4(C) at any time on or after the Covenant Modification Date).
SECTION 7.2.5. Consolidation, Merger, etc.
The Borrower will not permit, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a)    any such Subsidiary may (i) liquidate or dissolve voluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any
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Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 7.2.6; and
(b)    so long as no Event of Default or Prepayment Event 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:
(A)    the surviving corporation shall have assumed in a writing, delivered to the Facility Agent, all of the Borrower's obligations hereunder and under the other Loan Documents to which the Borrower is a party;
(B)    the surviving corporation shall, promptly upon the request of the Facility Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Facility Agent or any Lender in order for the Facility Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary "know your customer" or other similar checks under all applicable laws and regulations; and
(C)    as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a "Protesting Lender") shall so notify the Borrower and the Facility Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Facility Agent and such Protesting Lender that the Commitments of such Protesting
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Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Loan owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
SECTION 7.2.6. Asset Dispositions, etc.
Subject to Section 7.2.8, the Borrower will not permit, and will not permit any of its Subsidiaries to, sell, transfer, contribute or otherwise convey, or grant options, warrants or other rights with respect to all or substantially all of the assets of (a) the Borrower or (b) the Subsidiaries of the Borrower, taken as a whole except sales of assets between or among the Borrower and Subsidiaries of the Borrower.
SECTION 7.2.7. Construction Contract
The Borrower shall procure that no amendments or modifications are made to the Construction Contract if such amendment or modification results in (i) a change of type of the Purchased Vessel or (ii) (either by itself or when aggregated with earlier amendments or modifications, if any) a decrease in the capacity of the Purchased Vessel in terms of the number of passengers and/or staterooms by more than five per cent. (5%) or (iii) the Purchased Vessel being unable to comply with applicable laws (including Environmental Laws) if, in the reasonable opinion of the Hermes Agent, such inability has or could reasonably be expected to have a Material Adverse Effect, without, in any such case, the consent of the Hermes Agent.
SECTION 7.2.8. Additional Undertakings
From the effectiveness of Amendment Number One, and notwithstanding anything to the contrary set out in this Agreement or any other Loan Document:
(a)    First Priority Guarantee Matters. Until the occurrence of a First Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the First Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the First Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
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(iii)    the First Priority Guarantor will not incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with any Other Guarantees;
(iv)    neither Celebrity Cruises Holdings Inc. nor Celebrity Cruises Inc will incur any additional Indebtedness for borrowed money (including any guarantees in respect of Indebtedness), except in connection with the Secured Note Indebtedness or any Permitted Refinancing thereof; and
(v)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any First Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any First Priority Assets, other than:
(A)    to any other entity that is a First Priority Guarantor;
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of First Priority Assets made after the effectiveness of Amendment Number One (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(x)    $250,000,000 plus
(y)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) First Priority Assets or other assets owned by another First Priority Guarantor immediately prior to acquisition) acquired by any First Priority Guarantor after the effectiveness of Amendment Number One; or
(C)    if the net proceeds therefrom are applied in accordance with Section 4.09(b)(i) or 4.09(b)(iii) of the Secured Note Indenture, to the extent applicable at such time; provided, however, that if, within 450 days of such Disposition, any net proceeds of such Disposition have not been utilized in accordance with such provisions and are retained by the Borrower or any Subsidiary after such application (such retained net proceeds, "Excess Proceeds"), then:
(1)    if not already held by a First Priority Guarantor, such Excess Proceeds shall be promptly transferred to a First Priority
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Guarantor to be (x) retained in an account and on the balance sheet of that First Priority Guarantor and (y) used solely (i) for capital expenditures for the benefit of the remaining First Priority Assets or for the purposes of any asset purchase by that First Priority Guarantor or (ii) to make an offer to each ECA Guarantor in accordance with the following sub-clause (2); or
(2)    where the Borrower has elected to utilize the Excess Proceeds in the manner referred to in (ii) above, the Borrower shall make a written offer contemporaneously to each ECA Guarantor to apply such Excess Proceeds as a pro rata prepayment of the Loan and the Indebtedness under each other ECA Financing that is pari passu in right of payment to the Obligations. If any ECA Guarantor provides written notice to the Borrower within 90 days of such offer accepting such offer, the Borrower shall prepay the relevant Indebtedness notified to it within 10 Business Days (or such longer period as may be agreed with the lenders under each relevant ECA Financing being prepaid) of the date of receipt of such notice. If any ECA Guarantor fails to accept such offer within the said 90 days referred to above, then the pro rata portion of such Excess Proceeds that would have been applied to prepay the ECA Financings with respect to such ECA Guarantor if such offer was accepted shall be retained and applied in accordance with the foregoing sub-clause (1)(i).
(b)    Second Priority Guarantee Matters. Until the occurrence of a Second Priority Release Event:
(i)    the Borrower will not, and will not permit any of its Subsidiaries to, form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Second Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
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(ii)    no Second Priority Guarantor will form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary shall not, Dispose of any Second Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Second Priority Assets, other than:
(A)    to any other entity that is a Second Priority Guarantor; or
(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Second Priority Assets made after the effectiveness of Amendment Number One (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A)) is less than the sum of:
(x)    $250,000,000 plus
(y)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Second Priority Assets or other assets owned by another Second Priority Guarantor immediately prior to acquisition) acquired by any Second Priority Guarantor after the effectiveness of Amendment Number One.
(c)    Third Priority Guarantee Matters. Until the occurrence of a Third Priority Release Event:
(i)    the Borrower will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of the Third Priority Guarantor (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests);
(ii)    the Third Priority Guarantor will not form, create, acquire or otherwise establish any new Subsidiaries that own, directly or indirectly, the Equity Interests of any Principal Subsidiary (and will not permit any such new Subsidiary to own, directly or indirectly, any such Equity Interests); and
(iii)    the Borrower shall not, and shall procure that each other Subsidiary will not, Dispose of any Third Priority Assets or any Equity Interests in a Subsidiary that owns, directly or indirectly, any Third Priority Assets, other than:
(A)    to any other entity that is a Third Priority Guarantor;
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(B)    if the fair market value thereof, together with the fair market value of all other Dispositions of Third Priority Assets made after the effectiveness of Amendment Number One (but for this purpose excluding any Disposition of the type referred to in the foregoing clause (A) and any Disposition, the net proceeds of which are applied in accordance with the following clause (C)) is less than the sum of:
(x)    $250,000,000 plus
(y)    the fair market value of any asset (other than (1) current assets, intercompany debt or equity instruments and (2) Third Priority Assets or other assets owned by another Third Priority Guarantor immediately prior to acquisition) acquired by any Third Priority Guarantor after the effectiveness of Amendment Number One; or
(C)    if the net proceeds therefrom are applied in accordance with those provisions of the Unsecured Note Indenture and/or the definitive documentation governing the DDTL Indebtedness to the extent applicable at the time which allow the Borrower to make an offer to prepay and/or repay the debt evidenced by the Unsecured Note Indenture and/or DDTL Indebtedness, as applicable; provided that, if any such net proceeds are retained by the Borrower or any Subsidiary after such application, the Borrower shall promptly repay or redeem all or any portion of any Indebtedness that is pari passu or senior in right of payment to the Obligations and for which a Third Priority Guarantor is a guarantor, in each case, subject to the terms of the documentation governing such Indebtedness (including the DDTL Indebtedness, the Unsecured Note Indebtedness, any Bank Indebtedness, any Credit Card Obligations, the Loan and any other Indebtedness under an ECA Financing); provided, further, that any repayment of Indebtedness under any revolving credit agreement pursuant to this paragraph shall be accompanied by a corresponding permanent reduction in the related revolving credit commitments.
(d)    New Subsidiary Guarantor Matters. In the event the Borrower or any of its Subsidiaries acquires an ECA Financed Vessel:
(i)    the Borrower will, within 15 Business Days of the purchase of the relevant ECA Financed Vessel, cause the applicable New Subsidiary Guarantor
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to provide (A) an Additional Guarantee, together with each equivalent Other Guarantee required to be provided under the terms of the other ECA Financings (as amended from time to time) and (B) all documents and information required by the Lenders in order to satisfy any applicable "know your customer" checks and any other reasonable condition precedent requirements of the Lenders (excluding, for the avoidance of doubt, legal opinions); provided that, in each case, if such New Subsidiary Guarantor is party to a Senior Guarantee at such time, the Facility Agent shall have contemporaneously entered into a New Subsidiary Guarantor Subordination Agreement; and
(ii)    until the occurrence of a Second Priority Release Event and a Third Priority Release Event:
(A)    the Borrower will not permit the applicable New Subsidiary Guarantor to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness) other than the applicable Additional Guarantee, any Other Guarantee and any Senior Guarantee;
(B)    the Borrower will not permit the Principal Subsidiary that acquires the relevant ECA Financed Vessel to incur any Indebtedness for borrowed money (including any guarantees in respect of Indebtedness);
(C)    notwithstanding any other provision of this Agreement, the Borrower will not, and shall procure that no other Subsidiary shall, Dispose of (whether to a Group Member or otherwise) the relevant ECA Financed Vessel (or any equity interests in a Subsidiary that owns, directly or indirectly, such ECA Financed Vessel); provided that (1) such ECA Financed Vessel may be exclusively operated by or chartered to the Borrower or one of the Borrower's wholly owned Subsidiaries and (2) the Borrower or such Subsidiary may charter out such ECA Financed Vessel (x) to entities other than the Borrower and the Borrower's wholly owned Subsidiaries and (y) on a time charter with a stated duration not in excess of one year; and
(D)    notwithstanding the provisions of Sections 7.2.2 and 7.2.3, the Borrower will not, and will not permit any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon the relevant ECA Financed Vessel, other than Liens permitted under Section 7.2.3 that do not secure Indebtedness for borrowed money.
(e)    Further Assurances. At the Borrower's reasonable request, the Facility Agent shall execute (i) any Additional Subordination Agreement or any Subordination
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Agreement, in substantially the form attached hereto as Exhibit L or Exhibit M with such changes, or otherwise in form and substance, reasonably satisfactory to the Facility Agent (acting upon the instructions of the Required Lenders) to ensure the required priority of the Second Priority Guarantee and the Third Priority Guarantee and (ii) any New Subsidiary Guarantor Subordination Agreement contemporaneously with the execution of any Senior Guarantee by a New Subsidiary Guarantor if such New Subsidiary Guarantor has granted an Additional Guarantee at such time.
(f)    Amount of Indebtedness. The Borrower shall ensure that:
(i)    the maximum aggregate principal amount of Bank Indebtedness (or any Permitted Refinancing thereof) guaranteed by the Second Priority Guarantors shall not exceed, in the aggregate, $5,300,000,000 (or its equivalent in any other currency) until the occurrence of a First Priority Release Event, a Second Priority Release Event, and a Third Priority Release Event;
(ii)    the maximum aggregate principal amount of Unsecured Note Indebtedness and DDTL Indebtedness (or any Permitted Refinancing of either of them), in each case, guaranteed by the Third Priority Guarantor shall not exceed, in the aggregate, $1,700,000,000 (or its equivalent in any other currency) until the occurrence of a Third Priority Release Event;
(iii)    until the occurrence of a Second Priority Release Event, none of the Second Priority Guarantors will grant any guarantee that is pari passu with or senior to its obligations under the Second Priority Guarantee, except in connection with (A) any Bank Indebtedness or any Permitted Refinancing thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that currently provided by that Second Priority Guarantor in connection with the relevant Indebtedness; and
(iv)    until the occurrence of a Third Priority Release Event, the Third Priority Guarantor will not grant any guarantee that is pari passu with or senior to its obligations under the Third Priority Guarantee, except in connection with (A) any Bank Indebtedness, Unsecured Note Indebtedness, DDTL Indebtedness or any Permitted Refinancing of any thereof, (B) any Credit Card Obligations or (C) any Other Guarantees, provided that each Other Guarantee shall be on terms no more favourable in any material respect (including for this purpose the priority of that guarantee) than that currently provided by the Third Priority Guarantor in connection with the relevant Indebtedness.
(g)    Release of Guarantees. The Borrower agrees to give the Facility Agent written notice of the occurrence of any First Priority Release Event, Second Priority Release Event or Third Priority Release Event. The Facility Agent agrees, subject to the proviso (2) below, that:
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(i)    the First Priority Guarantee shall be automatically released upon the occurrence of a First Priority Release Event;
(ii)    the Second Priority Guarantee shall be automatically released upon the occurrence of a Second Priority Release Event;
(iii)    the Third Priority Guarantee shall be automatically released upon the occurrence of a Third Priority Release Event; and
(iv)    each Additional Guarantee shall be automatically released upon the occurrence of both a Second Priority Release Event and a Third Priority Release Event,
provided (1) in each case, and subject to proviso (2) below, that upon the Borrower's request, the Facility Agent shall promptly confirm in writing the release of the applicable Guarantee following the occurrence of the relevant release event and (2) where the Borrower is of the opinion that it would, if the Security Enhancement Guarantee Release Date was to occur, be in breach of the provisions of Section 7.2.2 as set out in Exhibit P (and which would otherwise come into effect on that Security Enhancement Guarantee Release Date) on the Security Enhancement Guarantee Release Date, the Borrower shall be entitled, by serving written notice on the Facility Agent and the Hermes Agent, to request that the Security Enhancement Security Enhancement Guarantee Release Date be postponed until such time as the Borrower is satisfied that it will be able to comply with the provisions of the said Section 7.2.2. Where the Borrower issues a notice pursuant to this proviso (2) it agrees that it shall use all reasonable endeavors and take all appropriate action as may be practicable at such time to enable it to comply with the said Section 7.2.2 as soon as practicable following the date that the Security Enhancement Guarantee Release Date would have occurred but for this proviso (2) so that the Security Enhancement Guarantee Release Date can then occur and, as soon as it is satisfied that it will be able to comply with the said Section 7.2.2, it will promptly serve a further written notice on the  Facility Agent and the Hermes Agent. Upon receipt of this further notice, the provisions of this paragraph (g) shall once again apply and the Facility Agent shall then take the action required of it to enable the Security Enhancement Guarantee Release Date to occur.
SECTION 7.2.9. Guarantor's Procurement Undertaking. Where any of the covenants set out in this Agreement require or purport to require performance by a Security Enhancement Guarantor or any Subsidiary of the Borrower, the Borrower shall procure the performance of that obligation by such Security Enhancement Guarantor or Subsidiary.
SECTION 7.2.10. Framework Lien and Guarantee Restriction
From the Amendment Two Effective Date until the Security Enhancement Guarantee Release Date, and without prejudice to Section 7.2.3, the Borrower shall not (and shall procure that each other Group Member shall not, save in respect of a Restricted Credit Enhancement of
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the type referred to in Section 7.1.10(d) (and in respect of which the Lenders therefore receive the benefit)):
a.    grant any Restricted Credit Enhancement in respect of any Indebtedness for borrowed money, provided that:
(i)     subject to the limitations set out in paragraph (b) below, this paragraph (a) shall not prohibit any Group Member from providing any Lien or Group Member Guarantee in connection with Indebtedness incurred after the Amendment Two Effective Date (provided that such Lien and/or Group Member Guarantee is issued at the same time, and in connection with, the initial incurrence of that Indebtedness (and is therefore not by way of additional credit support));
(ii)    in connection with a Permitted Refinancing of any Indebtedness, the relevant Group Member shall be entitled to provide the creditors under that Permitted Refinancing with Liens and/or Group Member Guarantees (as applicable) which:
(A)    in the case where the existing Indebtedness being refinanced was previously supported by Liens, the Liens and/or the Group Member Guarantees securing or supporting the Permitted Refinancing (as applicable) are over some or all of the same assets and:
(1)     with respect to any Liens, are with the same or lower priority as the Liens in respect of such assets that secured the Indebtedness being refinanced; and
(2)     with respect to any Group Member Guarantees, are Group Member Guarantees provided by a Group Member that owns (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that were previously secured pursuant to the Liens referred to in the first sentence of this paragraph (A); and
(B)    in the case where the existing Indebtedness being refinanced was previously supported by any Group Member Guarantee, the Group Member Guarantee(s) supporting such Permitted Refinancing are:
(1)    guarantees of obligations in an amount no greater than the guarantees granted in connection with the original Indebtedness being refinanced;
(2)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing is the same entity providing the Group
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Member Guarantees that are being replaced, provided by entities owning (directly or indirectly) only those Vessels (or some of those Vessels but not any other Vessel) that it owned when the previous Group Member Guarantee was provided;
(3)    in the case where the entity providing the relevant Group Member Guarantee(s) supporting such Permitted Refinancing differs from the entity providing the Group Member Guarantees being replaced, provided by entities that directly or indirectly own Vessels with an aggregate book value no greater than the Vessels that were owned (directly or indirectly) by the previous provider of the relevant Group Member Guarantee(s) that supported the existing Indebtedness; and
(4)    the same or lower priority as the original Group Member Guarantee(s) and are issued by either the same entities or from shareholders of those entities,
this paragraph (a) shall not prohibit any Group Member from providing or maintaining any Lien in accordance with the provisions of Section 7.2.3(h) through to (u) inclusive; provided, however, that the proviso at the end of Section 7.2.3(h) shall apply with respect to Liens granted pursuant that provision; and
b.    incur any new Indebtedness (including Indebtedness of the type referred to in paragraph 7.2.10(a)(i) above but excluding any Permitted Refinancing Indebtedness in connection with paragraph 7.2.10(a)(ii) above) which is secured by a Lien or is supported by a Group Member Guarantee and which, when taken with all other Indebtedness incurred by the Group since the Amendment Two Effective Date and which is also secured by a Lien or supported by a Group Member Guarantee, is greater than $1,300,000,000 (but deducting from this amount for this purpose, (i) the amount of any additional Indebtedness incurred by the Borrower in connection with the drawing of the DDTL Indebtedness (whether pursuant to the accordion option or otherwise) or (ii) any Indebtedness borrowed in lieu of the drawing of the DDTL Indebtedness in the foregoing clause) or its equivalent in any other currency, and provided that no Group Member shall, as contemplated by the proviso to Section 7.2.3, from the Amendment Two Effective Date until the Security Enhancement Guarantee Release Date (whereupon the relevant provisions of Exhibit P shall apply) be permitted to grant any Lien over an ECA Financed Vessel as security for any Indebtedness permitted to be incurred under this Agreement after the Amendment Two Effective Date.
SECTION 7.3. Covenant Replacement
With effect on and from the Security Enhancement Guarantee Release Date, it is agreed that Sections 7.2.2 and 7.2.3 shall be deleted in their entirety and replaced with the covenants and
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other provisions set out in Exhibit P, which shall become part of this Agreement and effective and binding on all parties.
SECTION 7.4. Limitation in respect of Certain Representations, Warranties and Covenants.
The representations and warranties and covenants given in Section 6.4(b) and 7.1.3(f) respectively shall only be given, and be applicable to, a Lender incorporated in the Federal Republic of Germany, or any other Lender who notifies the Facility Agent that this Section 7.3 applies to them, insofar as the giving of and compliance with such representations and warranties do not result in a violation of or conflict with section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section 4 paragraph 1 no.3 foreign trade law (AWG) (Außenwirtschaftsgesetz)), any provision of Council Regulation (EC) 2271/1996 in conjunction with (EU) 2018/1100 or any similar applicable anti-boycott law or regulation.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or occurrences described in this Section 8.1 shall constitute an "Event of Default".
SECTION 8.1.1. Non-Payment of Obligations.
The Borrower shall default in the payment when due of any amount payable by it under the Loan Documents in the manner required under the Loan Documents unless such failure is solely as a result of either (a) administrative or technical error or (b) a Disruption Event, and, in either case, payment is made within 3 Business Days of its due date.
SECTION 8.1.2. Breach of Warranty.
Any representation or warranty of an Obligor made or deemed to be made hereunder (including any certificates delivered pursuant to Article V) or under any other Loan Document is or shall be incorrect in any material respect when made.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
An Obligor shall default in the due performance and observance of any other agreement contained herein (including, from the Security Enhancement Guarantee Release Date, Exhibit P) or in any other Loan Document (other than the covenants set forth in Section 7.1.1(h), Section 7.1.1(i), Section 7.1.1(l), Section 7.1.1(m), Section 7.1.1(n), Section 7.1.9, Section 7.1.11, Section 7.2.4 (but excluding Sections 7.2.4(A) and 7.2.4(B) (a breach of which shall be regulated in accordance with Section 9.1.13(d)) and also excluding Section 7.2.4(C), a breach of which shall, subject to the cure periods set out in this Section 8.1.3, result in an Event of Default and the obligations referred to in Section 8.1.1) and such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower or relevant
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Obligor is actively seeking to remedy the same during such period, such default shall continue unremedied for at least 35 days after such notice to the Borrower).
SECTION 8.1.4. Default on Other Indebtedness.
(a) An Obligor or any of the Principal Subsidiaries shall fail to pay any Indebtedness that is outstanding in a principal amount of at least $100,000,000 (or the equivalent in other currencies) in the aggregate (but excluding Indebtedness hereunder or with respect to Hedging Instruments) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (b) the occurrence under any Hedging Instrument of an Early Termination Date (as defined in such Hedging Instrument) resulting from (A) any event of default under such Hedging Instrument as to which an Obligor is the Defaulting Party (as defined in such Hedging Instrument) or (B) any Termination Event (as so defined) as to which an Obligor is an Affected Party (as so defined) and, in either event, the termination value with respect to any such Hedging Instrument owed by the relevant Obligor as a result thereof is greater than $100,000,000 and the relevant Obligor fails to pay such termination value when due after applicable grace periods or (c) any other event shall occur or condition shall exist under any agreement or instrument evidencing, securing or relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to cause or permit the holder or holders of such Indebtedness to cause such Indebtedness to become due and payable prior to its scheduled maturity (other than as a result of any sale or other disposition of any property or assets under the terms of such Indebtedness); or (d) any such Indebtedness shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption or by voluntary agreement), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness is required to be made, in each case prior to the scheduled maturity thereof (other than as a result of any sale or other disposition of any property or assets under the terms of such Indebtedness); provided that any required prepayment or right to require prepayment triggered by terms that are certified by the Borrower to be unique to, but customary in, ship financings shall not constitute an Event of Default under this Section 8.1.4 so long as any required prepayment is made when due. For purposes of determining Indebtedness for any Hedging Instrument, the principal amount of the obligations under any such instrument at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the relevant Obligor or any Principal Subsidiary would be required to pay if such instrument were terminated at such time.
SECTION 8.1.5. Bankruptcy, Insolvency, etc.
The Borrower, any of the Material Subsidiary Guarantors or any of the Principal Subsidiaries (or any of its other Subsidiaries to the extent that the relevant event described below would have a Material Adverse Effect) shall:
(a)    generally fail to pay, or admit in writing its inability to pay, its debts as they become due;
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(b)    apply for, consent to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or other custodian for it or any of its property, or make a general assignment for the benefit of creditors;
(c)    in the absence of such application, consent or acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or other custodian for it or for a substantial part of its property, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 60 days, provided that in the case of such an event in respect of an Obligor or any Material Subsidiary Guarantor, such Person hereby expressly authorises the Facility Agent and each Lender to appear in any court conducting any relevant proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents;
(d)    permit or suffer to exist the commencement of any bankruptcy, reorganisation, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of each Obligor, any Material Subsidiary Guarantor or any of such Subsidiaries, and, if any such case or proceeding is not commenced by an Obligor, such Material Subsidiary Guarantor or such Subsidiary, such case or proceeding shall be consented to or acquiesced in by the relevant Obligor, such Material Subsidiary Guarantor or such Subsidiary or shall result in the entry of an order for relief or shall remain for 60 days undismissed, provided that each Obligor and each Material Subsidiary Guarantor hereby expressly authorises the Facility Agent and each Lender to appear in any court conducting any such case or proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents; or
(e)    take any corporate action authorising, or in furtherance of, any of the foregoing.
SECTION 8.2. Action if Bankruptcy.
If any Event of Default described in clauses (b) through (d) of Section 8.1.5 shall occur with respect to any Group Member, the Commitments (if not theretofore terminated) shall automatically terminate and the outstanding principal amount of the Loan and all other Obligations shall automatically be and become immediately due and payable, without notice or demand.
SECTION 8.3. Action if Other Event of Default.
If any Event of Default (other than any Event of Default described in clauses (b) through (d) of Section 8.1.5 with respect to an Obligor) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Facility Agent, upon the direction of the Required Lenders, shall by notice to the Borrower declare all of the outstanding principal amount of the Loan and other Obligations to be due and payable and/or the Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of the Loan and other Obligations shall be and become immediately due and payable, without further notice, demand or presentment, and/or, as the case may be, the Commitments shall terminate.
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ARTICLE IX
PREPAYMENT EVENTS
SECTION 9.1. Listing of Prepayment Events.
Each of the following events or occurrences described in this Section 9.1 shall constitute a "Prepayment Event".
SECTION 9.1.1. Change of Control
There occurs any Change of Control.
SECTION 9.1.2. Unenforceability
Any Loan Document shall cease to be the legally valid, binding and enforceable obligation of an Obligor or, to the extent applicable, any Material Subsidiary Guarantor (in each case, other than with respect to any provisions of any Loan Document (i) identified as unenforceable in the form of any opinion set forth as Exhibits B-1 to B-3 or in any opinion delivered to the Facility Agent after the Effective Date in connection with this Agreement or (ii) that a court of competent jurisdiction has determined are not material) and such event shall continue unremedied for 15 days after notice thereof has been given to the Borrower by the Facility Agent.
SECTION 9.1.3. Approvals
Any material license, consent, authorisation, registration or approval at any time necessary to enable an Obligor, any Material Subsidiary Guarantor or any Principal Subsidiary to conduct its business shall be revoked, withdrawn or otherwise cease to be in full force and effect, unless the same would not have a Material Adverse Effect.
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations
The Borrower shall default in the due performance and observance of any of the covenants set forth in Sections 4.12 or 7.2.4 (but excluding Sections 7.2.4(A) and 7.2.4(B) (which shall be regulated in accordance with Section 9.1.13(d)) and also excluding Section 7.2.4(C), a breach of which is regulated in accordance with Section 8.1.3); provided that any default in respect of the due performance or observance of any of the covenants set forth in Section 7.2.4 (but excluding Sections 7.2.4(A) and 7.2.4(B) inclusive) that occurs during the Financial Covenant Waiver Period (but without prejudice to the rights of the Lenders in respect of any further breach that may occur following the expiry of the Financial Covenant Waiver Period) shall not (as long as no Event of Default under Section 8.1.5 has occurred and is continuing, or no Prepayment Event under Section 9.1.13 or Section 9.1.14 has occurred, in each case during the Financial Covenant Waiver Period) constitute a Prepayment Event.
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SECTION 9.1.5. Judgments
Any judgment or order for the payment of money in excess of $100,000,000 shall be rendered against an Obligor or any of the Principal Subsidiaries by a court of competent jurisdiction and the relevant Obligor or such Principal Subsidiary shall have failed to satisfy such judgment and either:
(a)    enforcement proceedings in respect of any material assets of that Obligor or such Principal Subsidiary shall have been commenced by any creditor upon such judgment or order and shall not have been stayed or enjoined within five (5) Business Days after the commencement of such enforcement proceedings; or
(b)    there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
SECTION 9.1.6. Condemnation, etc.
The Purchased Vessel shall be condemned or otherwise taken under colour of law or requisitioned and the same shall continue unremedied for at least 20 days, unless such condemnation or other taking would not have a Material Adverse Effect.
SECTION 9.1.7. Arrest
The Purchased Vessel shall be arrested and the same shall continue unremedied for at least 20 days, unless such arrest would not have a Material Adverse Effect.
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel
The Purchased Vessel is sold to a company which is not the Original Borrower or the Borrower or any of their Subsidiaries, (other than for the purpose of a lease back to the Original Borrower, the Borrower or any other Subsidiary of either of them).
SECTION 9.1.9. Delayed Delivery of the Purchased Vessel
If, within 15 days after the Disbursement Date, the Loan has not been utilised to pay for delivery of the Purchased Vessel, unless (i) the Loan has been returned to the Facility Agent as prepayment in accordance with Section 3.2(a) or 3.7 or (ii) the proceeds of the Loan have been deposited to the Pledged Accounts in accordance with Section 4.12.
SECTION 9.1.10. Termination of the Construction Contract
If the Construction Contract is terminated in accordance with its terms or by other lawful means prior to delivery of the Purchased Vessel and the parties thereto do not reach an agreement to reinstate the Construction Contract within 30 days after such termination.
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SECTION 9.1.11. Termination, etc. of the Hermes Insurance Policy
If the Hermes Insurance Policy fails to be in full force and effect, is terminated or cancelled or is no longer valid, or it is suspended for more than six (6) months, in each case, so long as (a) such failure, termination, cancellation, invalidity or suspension is not due to the gross negligence or wilful misconduct of any Lender and (b) the relevant parties to the Hermes Insurance Policy do not reach an agreement to reinstate the Hermes Insurance Policy within 60 days after such failure, termination, cancellation or invalidity or the end of such six-month period, as the case may be. It being agreed that the Facility Agent shall promptly notify the Borrower upon receipt by Hermes of a written notice that the Hermes Insurance Policy is no longer in full force and effect, has been terminated, cancelled, is no longer valid or suspended.
Notwithstanding anything else contained in this Agreement, if, prior to delivery of the Purchased Vessel, the Borrower makes a Mandatory Prepayment pursuant to Section 9.2 as a result of Section 9.1.9 or a voluntary prepayment pursuant to Section 3.2(a) and the Purchased Vessel is delivered prior to the Commitment Termination Date, the Borrower shall be entitled to make an additional Loan Request prior to the Commitment Termination Date as if the funds had not been previously advanced. Payment of the Loan made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4.
SECTION 9.1.12. Illegality
No later than the close of business on the last day of the Option Period related to the giving of any Illegality Notice by an affected Lender pursuant to Section 3.2(d), either: (x) the Borrower has not elected to take an action specified in clause (1) or (2) of Section 3.2(d) or (y) if any such election shall have been made, the Borrower has failed to take the action required in respect of such election.
SECTION 9.1.13. Framework Prohibited Events
a.    The Borrower declares, pays or makes or agrees to pay or make, directly or indirectly, any Restricted Payment, except for (i) dividends or other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests or options to purchase Equity Interests, (ii) Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans (including with respect to performance shares issued in the ordinary course of business) for present or former officers, directors, consultants or employees of the Borrower in the ordinary course of business consistent with past practice and (iii) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exercisable for Equity Interests of the Borrower;
b.    a Group Member makes any payment of any kind under any shareholder loan;
c.    a Group Member sells, transfers, leases or otherwise disposes of any its assets, whether by one or a series of related transactions and that disposal or action was not conducted on arms' length terms between a willing seller and a willing buyer and for fair market value;
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d.    any Group Member breaches any of the requirements of Section 7.1.1.(h), Section 7.1.1.(i), Section 7.1.1.(l), Section 7.1.1.(m), Section 7.1.1.(n), Section 7.1.9, Section 7.1.11, Section 7.2.4(A) or Section 7.2.4(B);
e.    a Group Member completes a Debt Incurrence;
f.    a Group Member enters into a Restricted Loan Arrangement; and/or
g.    a Group Member makes a Restricted Voluntary Prepayment.
SECTION 9.1.14. Principles and Framework
The Borrower shall default in the due performance and observance of the Principles and/or the Framework (it being agreed that if there is inconsistency between the terms of the Principles and the Framework, the Framework shall prevail) and, if capable of remedy such default shall continue unremedied for a period of ten (10) days after notice thereof shall have been given to the Borrower by the Facility Agent; provided that, if the default does not otherwise constitute a Default or a Prepayment Event under another Section of this Agreement, as amended to date, the Borrower, the Facility Agent and Hermes shall negotiate a resolution in good faith for a maximum period of fifteen (15) days after notice thereof shall have been given to the Borrower by the Facility Agent.
SECTION 9.2. Mandatory Prepayment
If any Prepayment Event shall occur and be continuing (and subject, in the case of Section 9.1.11, to Section 11.17 and subject also in the case of Sections 9.1.13 and 9.1.14, to sub-paragraph b below), the Facility Agent, upon the direction of the Required Lenders, shall by notice to the Borrower either (i) if the Disbursement Date has occurred and the Loan disbursed (but without prejudice to the last paragraph of Section 9.1), require the Borrower to prepay in full on the date of such notice all principal of and interest on the Loan and all other Obligations (and, in such event, the Borrower agrees to so pay the full unpaid amount of the Loan and all accrued and unpaid interest thereon and all other Obligations) or (ii) if the Disbursement Date has not occurred, terminate the Commitments; provided that:
a.    if such Prepayment Event arises under Section 9.1.12, the remedy available under this Section 9.2 shall be limited to that provided above in clause (i) and only with respect to the portion of the Loan held by the affected Lender that gave the relevant Illegality Notice
b.    if such Prepayment Event arises under Section 9.1.13 or Section 9.1.14 such prepayment event shall not give rise to an entitlement on the part of the Lenders to terminate the Commitments or, where the Loan has been advanced, to require that the Loan is prepaid but instead, where a notice is given by the Facility Agent pursuant to this Section 9.2 following the occurrence of a Prepayment Event under either Section 9.1.13 or Section 9.1.14, the waiver of Section 7.2.4 contained in Section 9.1.4 shall immediately cease such that any breach of Section 7.2.4 in existence as at the date of the notice from the Facility Agent referred to in the first paragraph of this Section 9.2
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or any breach occurring at any time after such notice shall constitute a Prepayment Event with all attendant consequences.
ARTICLE X
THE FACILITY AGENT AND THE HERMES AGENT
SECTION 10.1. Actions.
Each Lender hereby appoints KfW IPEX, as Facility Agent and as Hermes Agent, as its agent under and for purposes of this Agreement and each other Loan Document (for purposes of this Article X, the Facility Agent and the Hermes Agent are referred to collectively as the "Agents"). Each Lender authorises the Agents to act on behalf of such Lender under this Agreement and each other Loan Document and, in the absence of other written instructions from the Required Lenders received from time to time by the Agents (with respect to which each Agent agrees that it will comply, except as otherwise provided in this Section 10.1 or as otherwise advised by counsel), to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Agents by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto. Neither Agent shall be obliged to act on the instructions of any Lender or the Required Lenders if to do so would, in the opinion of such Agent, be contrary to any provision of this Agreement or any other Loan Document or to any law, or would expose such Agent to any actual or potential liability to any third party.
SECTION 10.2. Indemnity.
Each Lender hereby indemnifies (which indemnity shall survive any termination of this Agreement) each Agent, pro rata according to such Lender's Percentage, from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel) that be incurred by or asserted or awarded against, such Agent in any way relating to or arising out of this Agreement and any other Loan Document or any action taken or omitted by such Agent under this Agreement or any other Loan Document; provided that no Lender shall be liable for the payment of any portion of such claims, damages, losses, liabilities and expenses which have resulted from such Agent's gross negligence or wilful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that such Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any such indemnified costs, this Section applies whether any such investigation, litigation or proceeding is brought by any Agent, any Lender or a third party. Neither Agent shall be required to take any action hereunder or under any other Loan Document, or to prosecute or defend any suit in respect of this Agreement or any other Loan Document, unless it is expressly required to do so under this Agreement or is indemnified hereunder to its satisfaction. If any indemnity in favour of an Agent shall be or become, in such Agent's determination, inadequate, such Agent may call for additional indemnification from the Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given.
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SECTION 10.3. Funding Reliance, etc.
Each Lender shall notify the Facility Agent by 4:00 p.m., Frankfurt time, one day prior to the advance of the Loan if it is not able to fund the following day. Unless the Facility Agent shall have been notified by telephone, confirmed in writing, by any Lender by 4:00 p.m., Frankfurt time, on the day prior to the advance of the Loan that such Lender will not make available the amount which would constitute its Percentage of the Loan on the date specified therefor, the Facility Agent may assume that such Lender has made such amount available to the Facility Agent and, in reliance upon such assumption, may, but shall not be obliged to, make available to the Borrower a corresponding amount. If and to the extent that such Lender shall not have made such amount available to the Facility Agent, such Lender and the Borrower severally agree to repay the Facility Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date the Facility Agent made such amount available to the Borrower to the date such amount is repaid to the Facility Agent, at the interest rate applicable at the time to the Loan without premium or penalty.
SECTION 10.4. Exculpation.
Neither of the Agents nor any of their respective directors, officers, employees or agents shall be liable to any Lender for any action taken or omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for its own wilful misconduct or gross negligence. Without limitation of the generality of the foregoing, each Agent (i) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it and in accordance with the advice of such counsel, accountants or experts, (ii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement, (iii) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of the Obligors or the existence at any time of any Default or Prepayment Event or to inspect the property (including the books and records) of the Obligors, (iv) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto, (v) shall incur no liability under or in respect of this Agreement by action upon any notice, consent, certificate or other instrument or writing (which may be by telecopier) believed by it to be genuine and signed or sent by the proper party or parties, and (vi) shall have no responsibility to the Obligors or any Lender on account of (A) the failure of a Lender or an Obligor to perform any of its obligations under this Agreement or any Loan Document; (B) the financial condition of the Obligors; (C) the completeness or accuracy of any statements, representations or warranties made in or pursuant to this Agreement or any Loan Document, or in or pursuant to any document delivered pursuant to or in connection with this Agreement or any Loan Document; or (D) the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of this Agreement or any Loan Document or of any document executed or delivered pursuant to or in connection with any Loan Document.
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SECTION 10.5. Successor.
The Facility Agent may resign as such at any time upon at least 30 days' prior notice to the Borrower and all Lenders, provided that any such resignation shall not become effective until a successor Facility Agent has been appointed as provided in this Section 10.5 and such successor Facility Agent has accepted such appointment. If the Facility Agent at any time shall resign, the Required Lenders shall, subject to the immediately preceding proviso and subject to the consent of the Borrower (such consent not to be unreasonably withheld), appoint another Lender as a successor to the Facility Agent which shall thereupon become such Facility Agent's successor hereunder (provided that the Required Lenders shall, subject to the consent of the Borrower unless an Event or Default or a Prepayment Event shall have occurred and be continuing (such consent not to be unreasonably withheld or delayed) offer to each of the other Lenders in turn, in the order of their respective Percentages of the Loan, the right to become successor Facility Agent). If no successor Facility Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the Facility Agent's giving notice of resignation, then the Facility Agent may, on behalf of the Lenders, appoint a successor Facility Agent, which shall be one of the Lenders or a commercial banking institution having a combined capital and surplus of at least $1,000,000,000 (or the equivalent in other currencies), subject, in each case, to the consent of the Borrower (such consent not to be unreasonably withheld). Upon the acceptance of any appointment as Facility Agent hereunder by a successor Facility Agent, such successor Facility Agent shall be entitled to receive from the resigning Facility Agent such documents of transfer and assignment as such successor Facility Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the resigning Facility Agent, and the resigning Facility Agent shall be discharged from its duties and obligations under this Agreement. After any resigning Facility Agent's resignation hereunder as the Facility Agent, the provisions of:
(a)    this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Facility Agent under this Agreement; and
(b)    Section 11.3 and Section 11.4 shall continue to inure to its benefit.
If a Lender acting as the Facility Agent assigns its Loan to one of its Affiliates, such Facility Agent may, subject to the consent of the Borrower (such consent not to be unreasonably withheld or delayed) assign its rights and obligations as Facility Agent to such Affiliate.
SECTION 10.6. Loans by the Facility Agent.
The Facility Agent shall have the same rights and powers with respect to the Loan made by it or any of its Affiliates. The Facility Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Obligors or any Affiliate of the Obligors as if the Facility Agent were not the Facility Agent hereunder and without any duty to account therefor to the Lenders. The Facility Agent shall have no duty to disclose information obtained or received by it or any of its Affiliates relating to any Obligor or its Subsidiaries to the extent such information was obtained or received in any capacity other than as the Facility Agent.
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SECTION 10.7. Credit Decisions.
Each Lender acknowledges that it has, independently of each Agent and each other Lender, and based on such Lender's review of the financial information of the Obligors, this Agreement, the other Loan Documents (the terms and provisions of which being satisfactory to such Lender) and such other documents, information and investigations as such Lender has deemed appropriate, made its own credit decision to extend its Commitment. Each Lender also acknowledges that it will, independently of each Agent and each other Lender, and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under this Agreement or any other Loan Document.
SECTION 10.8. Copies, etc.
Each Agent shall give prompt notice to each Lender of each notice or request required or permitted to be given to such Agent by an Obligor pursuant to the terms of this Agreement and the other Loan Documents (unless concurrently delivered to the Lenders by the relevant Obligor). Each Agent will distribute to each Lender each document or instrument received for its account and copies of all other communications received by such Agent from the Obligors for distribution to the Lenders by such Agent in accordance with the terms of this Agreement and the other Loan Documents.
SECTION 10.9. The Agents' Rights.
Each Agent may (i) assume that all representations or warranties made or deemed repeated by the Obligors in or pursuant to this Agreement or any Loan Document are true and complete, unless, in its capacity as the Facility Agent, it has acquired actual knowledge to the contrary, (ii) assume that no Default has occurred unless, in its capacity as an Agent, it has acquired actual knowledge to the contrary, (iii) rely on any document or notice believed by it to be genuine, (iv) rely as to legal or other professional matters on opinions and statements of any legal or other professional advisers selected or approved by it, (v) rely as to any factual matters which might reasonably be expected to be within the knowledge an Obligor on a certificate signed by or on behalf of that Obligor and (vi) refrain from exercising any right, power, discretion or remedy unless and until instructed to exercise that right, power, discretion or remedy and as to the manner of its exercise by the Lenders (or, where applicable, by the Required Lenders) and unless and until such Agent has received from the Lenders any payment which such Agent may require on account of, or any security which such Agent may require for, any costs, claims, expenses (including legal and other professional fees) and liabilities which it considers it may incur or sustain in complying with those instructions.
SECTION 10.10. The Facility Agent's Duties.
The Facility Agent shall (i) if requested in writing to do so by a Lender, make enquiry and advise the Lenders as to the performance or observance of any of the provisions of this Agreement or any other Loan Document by any Obligor or as to the existence of an Event of Default and (ii) inform the Lenders promptly of any Event of Default of which the Facility Agent has actual knowledge.
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The Facility Agent shall not be deemed to have actual knowledge of the falsehood or incompleteness of any representation or warranty made or deemed repeated by the Obligors or actual knowledge of the occurrence of any Default unless a Lender or an Obligor shall have given written notice thereof to the Facility Agent in its capacity as the Facility Agent. Any information acquired by the Facility Agent other than specifically in its capacity as the Facility Agent shall not be deemed to be information acquired by the Facility Agent in its capacity as the Facility Agent.
The Facility Agent may, without any liability to account to the Lenders, generally engage in any kind of banking or trust business with the Obligors or with any Obligor's subsidiaries or associated companies or with a Lender as if it were not the Facility Agent.
SECTION 10.11. Employment of Agents.
In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to this Agreement or the Loan Documents, each Agent shall be entitled to employ and pay agents to do anything which such Agent is empowered to do under or pursuant to this Agreement or the Loan Documents (including the receipt of money and documents and the payment of money); provided that, unless otherwise provided herein, including without limitation Section 11.3, the employment of such agents shall be for such Agent's account, and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by such Agent in good faith to be competent to give such opinion, advice or information.
SECTION 10.12. Distribution of Payments.
The Facility Agent shall pay promptly to the order of each Lender that Lender's Percentage Share of every sum of money received by the Facility Agent pursuant to this Agreement or the Loan Documents (with the exception of any amounts payable pursuant to the Fee Letter and any amounts which, by the terms of this Agreement or the Loan Documents, are paid to the Facility Agent for the account of the Facility Agent alone or specifically for the account of one or more Lenders) and until so paid such amount shall be held by the Facility Agent on trust absolutely for that Lender.
SECTION 10.13. Reimbursement.
The Facility Agent shall have no liability to pay any sum to a Lender until it has itself received payment of that sum. If, however, the Facility Agent does pay any sum to a Lender on account of any amount prospectively due to that Lender pursuant to Section 10.12 before it has itself received payment of that amount, and the Facility Agent does not in fact receive payment within two (2) Business Days after the date on which that payment was required to be made by the terms of this Agreement or the Loan Documents, that Lender will, on demand by the Facility Agent, refund to the Facility Agent an amount equal to the amount received by it, together with an amount sufficient to reimburse the Facility Agent for any amount which the Facility Agent may certify that it has been required to pay by way of interest on money borrowed to fund the amount in question during the period beginning on the date on which that amount was required
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to be paid by the terms of this Agreement or the Loan Documents and ending on the date on which the Facility Agent receives reimbursement.
SECTION 10.14. Instructions.
Where an Agent is authorised or directed to act or refrain from acting in accordance with the instructions of the Lenders or of the Required Lenders each of the Lenders shall provide such Agent with instructions within three (3) Business Days of such Agent's request (which request may be made orally or in writing). If a Lender does not provide such Agent with instructions within that period, that Lender shall be bound by the decision of such Agent. Nothing in this Section 10.14 shall limit the right of such Agent to take, or refrain from taking, any action without obtaining the instructions of the Lenders or the Required Lenders if such Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Lenders under or in connection with this Agreement or the Loan Documents. In that event, such Agent will notify the Lenders of the action taken by it as soon as reasonably practicable, and the Lenders agree to ratify any action taken by the Facility Agent pursuant to this Section 10.14.
SECTION 10.15. Payments.
All amounts payable to a Lender under this Section 10.15 shall be paid to such account at such bank as that Lender may from time to time direct in writing to the Facility Agent.
SECTION 10.16. "Know your customer" Checks.
The Borrower will promptly on any Lender's request supply to it any documentation or other evidence that is reasonably required by that Lender for itself to enable that Lender:
(a)    to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks that that Lender or any such person is obliged to carry out under all applicable laws and regulations pursuant to the transactions contemplated in the Loan Documents; and
(b)    to comply with its obligations under all applicable laws and regulations to prevent money laundering and corruption and to conduct ongoing monitoring of the business relationship with the Obligors.
SECTION 10.17. No Fiduciary Relationship.
Except as provided in Section 10.12, no Agent shall have any fiduciary relationship with or be deemed to be a trustee of or for any other person and nothing contained in this Agreement or any Loan Document shall constitute a partnership between any two or more Lenders or between either Agent and any other person.
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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 or change the definition of "Required Lenders" shall be made without the consent of each Lender;
(c)    increase the Commitment of any Lender shall be made without the consent of such Lender;
(d)    reduce any fees described in Article III payable to any Lender shall be made without the consent of such Lender;
(e)    extend the Commitment Termination Date of any Lender shall be made without the consent of such Lender;
(f)    extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on the Loan (or reduce the principal amount of or rate of interest on the Loan) owed to any Lender shall be made without the consent of such Lender; or
(g)    affect adversely the interests, rights or obligations of the Facility Agent in its capacity as such shall be made without consent of the Facility Agent.
No failure or delay on the part of the Facility Agent or any Lender in exercising any power or right under this Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Facility Agent or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The Lenders hereby agree, at any time and from time to time that the Nordea Agreement or the Bank of Nova Scotia Agreement is amended or refinanced, to negotiate in good faith to amend this Agreement to conform any representations, warranties, covenants or events of default in this Agreement to the amendments made to any substantively comparable provisions in the Nordea Agreement or the Bank of Nova Scotia Agreement or any refinancing thereof.
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SECTION 11.2. Notices.
(a)    All notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing, by facsimile or by electronic mail and addressed, delivered or transmitted to such party at its address, facsimile number or electronic mail address set forth below its signature hereto or, in the case of the New Lenders (as defined in Amendment Number Three), as set out in Schedule 1 of Amendment Number Three, or as otherwise set out or set forth in the Lender Assignment Agreement or at such other address, or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient.
(b)    So long as KfW IPEX is the Facility Agent, an Obligor may provide to the Facility Agent all information, documents and other materials that it furnishes to the Facility Agent hereunder or any other Loan Document (and any guaranties, security agreements and other agreements relating thereto), including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing advance or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due hereunder or any other Loan Document prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of the Agreement and/or any advance or other extension of credit hereunder (all such non-excluded communications being referred to herein collectively as "Communications"), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Facility Agent at Ole_Christian.Sande@kfw.de and maritime-industries-administration@kfw.de (or such other email address notified by the Facility Agent to the Borrower); provided that any Communication requested pursuant to Section 7.1.1(h) shall be in a format acceptable to the Borrower and the Facility Agent.
(c)    The Borrower agrees that the Facility Agent may make such items included in the Communications as the Borrower may specifically agree available to the Lenders by posting such notices, at the option of the Borrower, on Intralinks or any similar such platform (the "Platform") acceptable to the Borrower. Although the primary web portal is secured with a dual firewall and a User ID/Password Authorisation System and the Platform is secured through a single user per deal authorisation method whereby each user may access the Platform only on a deal-by-deal basis, each Obligor acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided "as is" and "as available" and (iii) neither the Facility Agent nor any of its Affiliates warrants the
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accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Facility Agent or any of its Affiliates in connection with the Platform.
(d)    The Facility Agent agrees that the receipt of Communications by the Facility Agent at its e-mail address set forth above shall constitute effective delivery of such Communications to the Facility Agent for purposes hereunder and any other Loan Document (and any guaranties, security agreements and other agreements relating thereto).
SECTION 11.3. Payment of Costs and Expenses.
The Borrower agrees to pay on demand all reasonable expenses of the Facility Agent and KfW (including the reasonable fees and out-of-pocket expenses of counsel to the Facility Agent, and of local counsel, if any, who may be retained by counsel to the Facility Agent and, in the case of KfW, counsel retained by KfW with the Borrower's prior approval in connection with the initial syndication of the Loan) in connection with the initial syndication of the Loan and 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. In addition, the Borrower agrees to pay (i) reasonable fees and out of pocket expenses of counsel to the Facility Agent and (if and to the extent that KfW uses the same counsel as that of the Facility Agent) of counsel to KfW in connection with the funding under this Agreement. The Borrower further agrees to pay, and to save the Facility Agent and the Lenders harmless from all liability for, any stamp, recording, documentary or other similar taxes arising from the execution, delivery or enforcement of this Agreement or the borrowing hereunder or any other Loan Documents. The Borrower also agrees to reimburse the Facility Agent and each Lender upon demand for all reasonable out-of-pocket expenses (including reasonable attorneys' fees and legal expenses) incurred by the Facility Agent or such Lender in connection with (x) the negotiation of any restructuring or "work-out", whether or not consummated, of any Obligations and (y) the enforcement of any Obligations. For the purposes of this Section 11.3, references to "KfW" shall mean KfW only in its capacity as set out in sub-clauses (a) and (b) of the definition of "KfW".
SECTION 11.4. Indemnification.
In consideration of the execution and delivery of this Agreement by each Lender and the extension of the Commitments, the Borrower hereby indemnifies and holds harmless the Facility Agent, each Lender and each of their respective Affiliates and their respective officers, advisors, directors and employees (collectively, the "Indemnified Parties") from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defence in connection therewith), in
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each case arising out of or in connection with or by reason of this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby or any actual or proposed use of the proceeds of the Loans (collectively, the "Indemnified Liabilities"), except to the extent such claim, damage, loss, liability or expense (i) is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party's gross negligence or wilful misconduct or the material breach by such Indemnified Party of its obligations under this Agreement or any other Loan Document and which breach is not attributable to the Borrower's own breach of the terms of this Agreement or any other Loan Document or (ii) relates to a FATCA Deduction required to be made by a party to this Agreement. In the case of an investigation, litigation or other proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its directors, security holders or creditors, an Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto. Each Indemnified Party shall (a) furnish the Borrower with prompt notice of any action, suit or other claim covered by this Section 11.4, (b) not agree to any settlement or compromise of any such action, suit or claim without the Borrower's prior consent, (c) shall cooperate fully in the Borrower's defence of any such action, suit or other claim (provided that the Borrower shall reimburse such Indemnified Party for its reasonable out-of-pocket expenses incurred pursuant hereto) and (d) at the Borrower's request, permit the Borrower to assume control of the defence of any such claim, other than regulatory, supervisory or similar investigations, provided that (i) the Borrower acknowledges in writing its obligations to indemnify the Indemnified Party in accordance with the terms herein in connection with such claims, (ii) the Borrower shall keep the Indemnified Party fully informed with respect to the conduct of the defence of such claim, (iii) the Borrower shall consult in good faith with the Indemnified Party (from time to time and before taking any material decision) about the conduct of the defence of such claim, (iv) the Borrower shall conduct the defence of such claim properly and diligently taking into account its own interests and those of the Indemnified Party, (v) the Borrower shall employ counsel reasonably acceptable to the Indemnified Party and at the Borrower's expense, and (vi) the Borrower shall not enter into a settlement with respect to such claim unless either (A) such settlement involves only the payment of a monetary sum, does not include any performance by or an admission of liability or responsibility on the part of the Indemnified Party, and contains a provision unconditionally releasing the Indemnified Party and each other indemnified party from, and holding all such persons harmless, against, all liability in respect of claims by any releasing party or (B) the Indemnified Party provides written consent to such settlement (such consent not to be unreasonably withheld or delayed). Notwithstanding the Borrower's election to assume the defence of such action, the Indemnified Party shall have the right to employ separate counsel and to participate in the defence of such action and the Borrower shall bear the fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Borrower to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Borrower and the Indemnified Party and the Indemnified Party shall have concluded that there may be legal defences available to it which are different from or additional to those available to the Borrower and determined that it is necessary to employ separate counsel in order to pursue such defences (in which case the Borrower shall not have the right to assume the defence of such action on the Indemnified Party's behalf), (iii) the Borrower shall not have employed counsel
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reasonably acceptable to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action, or (iv) the Borrower authorises the Indemnified Party to employ separate counsel at the Borrower's expense. The Borrower acknowledges that none of the Indemnified Parties shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Borrower or any of its security holders or creditors for or in connection with the transactions contemplated hereby, except to the extent such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party's gross negligence or wilful misconduct. In no event, however, shall any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings). If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
SECTION 11.5. Survival.
The obligations of the Borrower under Sections 4.3, 4.4, 4.5, 4.6, 4.7, 11.3 and 11.4 and the obligations of the Lenders under Section 10.1, shall in each case survive any termination of this Agreement and the payment in full of all Obligations. The representations and warranties made by the Borrower in this Agreement and in each other Loan Document shall survive the execution and delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability; Independence of Obligations.
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.
The Borrower agrees that the Borrower's obligations under this Agreement (including its obligation to repay the Loan) (a) are independent of the Construction Contract and (b) will not be invalidated, suspended or limited in any way by any termination, rescission, cancellation, invalidation, non-performance or non-completion of the Construction Contract or any other contract, agreement or arrangement relating thereto (other than the Loan Documents) or any dispute or claim between the Borrower, the Original Borrower and/or the Builder and/or any suppliers and/or any other third parties under or in connection with the Construction Contract, or any defence thereto, or any insolvency proceedings relating to the Builder or any other Person.
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.
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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. Third Party Rights.
Notwithstanding the provisions of the Contracts (Rights of Third Parties) Act 1999, no term of this Agreement is enforceable by a person who is not a party to it.
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 7.2.5, the Borrower shall not assign or transfer its rights or obligations hereunder without the prior written consent of the Facility Agent and each Lender; and
(b)    the rights of sale, assignment and transfer of the Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan.
Each Lender may assign its Percentage or portion of the Loan to one or more other Persons (a "New Lender"), or sell participations in its Percentage or portion of the Loan to one or more other Persons; provided that, in the case of assignments, such New Lender enters into a CIRR Agreement; and provided further that, in the case of assignments, such Lender shall use commercially reasonable efforts to assign only to a New Lender that has agreed to enter into an Option A Refinancing Agreement.
SECTION 11.11.1. Assignments
(i) KfW IPEX, as Lender, (A)(1) with the prior consultation and written consent of the Borrower (which consent shall not be unreasonably delayed or withheld but which consent shall be deemed to have been given in the absence of a written notice delivered by the Borrower to KfW IPEX, on or before the fifth Business Day after receipt by the Borrower of KfW IPEX's request for consent, stating, in reasonable detail, the reasons why the Borrower proposes to withhold such consent) may at any time (and from time to time) assign or transfer (including by way of novation) to one or more commercial banks or other financial institutions, when taken together with participations sold by KfW IPEX pursuant to Section 11.11.2, such part of its share of the aggregate principal amount of the Loan or the total aggregate Commitments as does not reduce its share below 50% of the total Loan or total Commitments and (2) after having assigned or transferred, when taken together with participations sold by KfW IPEX pursuant to Section 11.11.2, such part of its share of the aggregate principal amount of the Loan or total aggregate Commitments so as to reduce its said share to 50% of the total Loan or total Commitments
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(pursuant to the foregoing clause (1) and/or Section 11.11.2), with the written consent of the Borrower (which consent may be withheld at the discretion of the Borrower) may at any time (and from time to time) assign or transfer (including by way of novation) to one or more commercial banks or other financial institutions all or any fraction of KfW IPEX's remaining portion of the Loan or remaining Commitment, (B) with notice to the Borrower and, notwithstanding the following clause (ii), without the consent of the Borrower, may assign or transfer at any time to KfW and (C) in connection with the primary syndication of the Loan, at any time (and from time to time) assign or transfer to one or more commercial banks or other financial institutions identified by the Borrower in consultation with KfW IPEX that fraction of KfW IPEX´s Loan or Commitment that the Borrower directs KfW IPEX to assign or transfer.
(ii) Any Lender (other than KfW IPEX) with the prior consultation and written consent of the Borrower and the Facility Agent (which consents shall not be unreasonably delayed or withheld and which consent, in the case of the Borrower, shall be deemed to have been given in the absence of a written notice delivered by the Borrower to the Facility Agent, on or before the fifth Business Day after receipt by the Borrower of such Lender's request for consent, stating, in reasonable detail, the reasons why the Borrower proposes to withhold such consent) may at any time (and from time to time) assign or transfer to one or more commercial banks or other financial institutions all or any fraction of such Lender's Loan; provided that (A) any Affiliate of KfW IPEX shall be subject to the provisions of Section 11.11.1(i) and 11.11.2(f) as if such Affiliate were KfW IPEX and (B) in the case of any other assignee or transferee, such other assignee or transferee shall (1) be reasonably acceptable to the Facility Agent, (2) meet the criteria set out in Section 2.2 of the Terms and Conditions and (3) in the case of a replacement of an Option A Lender, be reasonably acceptable to KfW.
(iii) Any Lender, with notice to the Borrower and the Facility Agent, and, notwithstanding the foregoing clauses (i) and (ii), without the consent of the Borrower, or the Facility Agent may assign or transfer (A) following the Disbursement Date, to any of its Affiliates or (B) following the occurrence and during the continuance of an Event of Default under Sections 8.1.1, 8.1.4(a) or 8.1.5, to any other Person, in either case, all or any fraction of such Lender's portion of the Loan but on the basis that, in the case of clause (A) and clause (B), any assignee or transferee shall (1) be reasonably acceptable to the Facility Agent, (2) meet the criteria set out in Section 2.2 of the Terms and Conditions and (3) in the case of a replacement of an Option A Lender, be reasonably acceptable to KfW.
(iv) Any Lender may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign or charge all or any fraction of its portion of the Loan to (i) any Federal Reserve Bank as collateral security pursuant to Regulation A of the F.R.S. Board and any Operating Circular issued by such Federal Reserve Bank all or any fraction of such Lender's portion of the Loan, (ii) any other federal reserve or central bank responsible for a Lender or (iii) to KfW as collateral security pursuant to the terms of any Option A Refinancing Agreement entered into by such Lender.
(v) No Lender may (notwithstanding the foregoing clauses) assign or transfer any of its rights under this Agreement unless it has given prior written notification of the transfer to Hermes and (if it is then funded by KfW) KfW and has obtained a prior written consent from Hermes and (if it is then funded by KfW) KfW.
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(vi) Nothing in this Section 11.11.1 shall prejudice the right of the Lender to assign its rights under this Agreement to Hermes, if such assignment is required to be made by that Lender to Hermes in accordance with the Hermes Insurance Policy.
Each Person described in the foregoing clauses as being the Person to whom such assignment or transfer is to be made, is hereinafter referred to as an "Assignee Lender". Assignments in a minimum aggregate amount of $25,000,000 (or, if less, all of such Lender's portion of the Loan and Commitment) (which assignment or transfer shall be of a constant, and not a varying, percentage of such Lender's portion of the Loan) are permitted; provided that the Borrower and the Facility Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned or transferred to an Assignee Lender until:
(a)    written notice of such assignment or transfer, together with payment instructions, addresses and related information with respect to such Assignee Lender, shall have been given to the Borrower and the Facility Agent by such Lender and such Assignee Lender;
(b)    such Assignee Lender shall have executed and delivered to the Borrower and the Facility Agent a Lender Assignment Agreement, accepted by the Facility Agent and, if the applicable portion of the Loan is a Fixed Rate Loan, any other agreements required by the Facility Agent or KfW in connection therewith; and
(c)    the processing fees described below shall have been paid.
From and after the date that the Facility Agent accepts such Lender Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to have become a party hereto and to the extent that rights and obligations hereunder have been assigned or transferred to such Assignee Lender in connection with such Lender Assignment Agreement, shall have the rights and obligations of a Lender hereunder and under the other Loan Documents, and (y) the assignor Lender, to the extent that rights and obligations hereunder have been assigned or transferred by it, shall be released from its obligations hereunder and under the other Loan Documents, other than any obligations arising prior to the effective date of such assignment. Except to the extent resulting from a subsequent change in law, in no event shall the Borrower be required to pay to any Assignee Lender any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no such assignment been made. Such assignor Lender or such Assignee Lender must also pay a processing fee to the Facility Agent upon delivery of any Lender Assignment Agreement in the amount of $2,000 (and shall also reimburse the Facility Agent and KfW for any reasonable out-of-pocket costs, including reasonable attorneys' fees and expenses, incurred in connection with the assignment).
SECTION 11.11.2. Participations.
Any Lender may at any time sell to one or more commercial banks or other financial institutions (each of such commercial banks and other financial institutions being herein called a "Participant") participating interests in its Loan; provided that:
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(a)    no participation contemplated in this Section 11.11.2 shall relieve such Lender from its obligations hereunder;
(b)    such Lender shall remain solely responsible for the performance of its obligations hereunder;
(c)    the Borrower and the Facility Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and each of the other Loan Documents;
(d)    no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant's consent, take any actions of the type described in clauses (b) through (f) of Section 11.1;
(e)    the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no participating interest been sold;
(f)    each Lender that sells a participation under this Section 11.11.2 shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each of the Participant's interest in that Lender's portion of the Loan, Commitments or other interests hereunder (the "Participant Register"). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender may treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes hereunder; and
(g)    KfW IPEX may not sell participating interests pursuant to this Section 11.11.2 that, when taken together with Loans and/or Commitments sold by KfW IPEX pursuant to Section 11.11.1, result in KfW IPEX's share of the aggregate principal amount of the Loan and/or the aggregate Commitments being less than 50% of the total Loan or total Commitments, without the written consent of the Borrower (which consent shall not be required following the occurrence and during the continuance of an Event of Default or a Prepayment Event).
The Borrower acknowledges and agrees that each Participant, for purposes of Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and clause (e) of 7.1.1, shall be considered a Lender.
SECTION 11.11.3. Register.
The Facility Agent, acting as agent for the Borrower, shall maintain at its address referred to in Section 11.2 a copy of each Lender Assignment Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment(s) of, and principal amount of the Loan owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes,
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absent manifest error, and the Borrower, the Facility Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any Obligor or any Lender at any reasonable time and from time to time upon reasonable prior notice.
SECTION 11.12. Other Transactions.
Nothing contained herein shall preclude the Facility Agent or any Lender from engaging in any transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or any of its Affiliates in which the Borrower or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13. Hermes Insurance Policy.
SECTION 11.13.1. Terms of Hermes Insurance Policy
(a)    The Hermes Insurance Policy will cover 95% of the Loan.
(b)    The Original Hermes Fee will equal 2.37% of the aggregate principal amount of the Loan (but excluding the Increase Loan Amount) as at the Delivery Date. The Additional Hermes Fee will equal 5.35% of the Increase Loan Amount.
(c)    The parties have entered into this Agreement on the basis that the Hermes Insurance Policy shall contain the following terms and should such terms not be included within the Hermes Insurance Policy, then the Borrower may cancel the Commitment(s):
(i)    25% of the Original Hermes Fee as in effect on the date of issuance of the Hermes Insurance Policy ("First Original Fee") will be payable to the Hermes Agent or Hermes in Dollars within two (2) Business Days of receipt by the Borrower of demand from the Hermes Agent following the later to occur of (i) the issue of the Hermes Insurance Policy and (ii) the Effective Date;
(ii)    25% of the Additional Hermes Fee ("First Amendment Fee”, and together with the First Original Fee, the “First Fee") will be payable to the Hermes Agent or Hermes in Dollars within two (2) Business Days of receipt by the Borrower of demand from the Hermes Agent following the issue of the amendment to the Hermes Insurance Policy made in connection with Amendment Number Three;
(iii)    the balance of the Original Hermes Fee and the balance of the Additional Hermes Fee (after deducting the amount of the First Original Fee and the First Amendment Fee (as applicable)) ("Second Fee") will be payable in Dollars, to the Hermes Agent or Hermes on the Delivery Date;
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(iv)    if the Commitments are cancelled in full by the Borrower or the Lenders on or prior to the Delivery Date (including, for the avoidance of doubt, subsequent to disbursement of the Loan and prepayment thereof by the Borrower under Section 3.7), Hermes shall be required to reimburse the Hermes Agent the amount of the First Fee less an administration fee (such administration fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR2,500);
(v)    if the Commitments are cancelled in part by the Borrower on or prior to the Delivery Date (including, for the avoidance of doubt, subsequent to disbursement of the Loan and prepayment thereof by the Borrower under Section 3.7), Hermes shall be required to reimburse the Hermes Agent an amount equal to a corresponding proportion of the First Fee, based on the proportion of the aggregate Commitments prior to such cancellation to the aggregate Commitments after giving effect to such cancellation, less an administration fee (such administration fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR2,500); and
(vi)    if, after the Delivery Date, the Borrower prepays all or part of the Loan in accordance with this Agreement, Hermes shall be required to reimburse the Hermes Agent an amount equal to a corresponding proportion of the unexpired portion of the Hermes Fee, having regard to the amount of the prepayment and the remaining term of the Loan less the sum of (x) a break funding fee equal to 20% of the unexpired portion of the Hermes Fee and (y) an administration fee (such fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR2,500).
Where the Hermes Agent receives any reimbursement of any Hermes Fee, other than the First Fee prior to the date the Borrower is reimbursed out of proceeds of the Loan for that First Fee, such reimbursed amount received from Hermes shall be used in prepayment of the Loan without any further notice by the Hermes Agent to the Borrower or, where the Loan has already been prepaid in full, any such amount shall be paid directly to the Borrower or as it may direct. The Hermes Agent shall inform the Borrower as soon as reasonably possible after it becomes aware of any decrease in the Hermes Fee which may result in a reimbursement by Hermes of an excess amount to the Hermes Agent and a consequential prepayment of the Loan under this Section.
SECTION 11.13.2. Obligations of the Borrower.
(a)    Provided that the Hermes Insurance Policy complies with Section 11.13.1, the Borrower shall pay (a) the First Fee to the Hermes Agent in accordance with section 11.13.1(c)(i) and (b) the Second Fee to the Hermes Agent on the Delivery Date. In each case, if received by the Hermes Agent, the Hermes Agent shall pay such amount to Hermes.
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(b)    Provided that the Hermes Insurance Policy complies with Section 11.13.1, the Borrower shall pay to the Hermes Agent an issue fee of EUR12,500 for the issue of the Hermes Insurance Policy at the same time that the First Fee is payable.
SECTION 11.13.3. Obligations of the Hermes Agent and the Lenders.
(a)    Promptly upon receipt of the Hermes Insurance Policy from Hermes, the Hermes Agent shall (subject to any confidentiality undertakings given to Hermes by the Hermes Agent pursuant to the terms of the Hermes Insurance Policy) send a copy thereof to the Borrower.
(b)    The Hermes Agent shall perform such acts or provide such information which are, acting reasonably, within its power so to perform or so to provide, as required by Hermes under the Hermes Insurance Policy and as are necessary to ensure that the Lenders obtain the support of Hermes pursuant to the Hermes Insurance Policy.
(c)    The Hermes Agent shall (in the circumstances described in Section 11.13.1(c)(iii), (iv) or (v)):
(i)    make written requests to Hermes seeking a reimbursement of the Hermes Fee promptly after the relevant cancellation or prepayment and (subject to any confidentiality undertakings given to Hermes by the Hermes Agent pursuant to the terms of the Hermes Insurance Policy) provide a copy of the request to the Borrower;
(ii)    use its reasonable endeavours to maximise the amount of any reimbursement of the Hermes Fee to which the Hermes Agent is entitled;
(iii)    pay to the Borrower the full amount of any reimbursement of the Hermes Fee that the Hermes Agent receives from Hermes within two (2) Business Days of receipt with same day value; and
(iv)    relay the good faith concerns of the Borrower to Hermes regarding the amount it is required to pay to Hermes or the amount of any reimbursement to which the Hermes Agent is entitled, it being agreed that the Hermes Agent's obligation shall be no greater than simply to pass on to Hermes the Borrower's concerns.
(d)    Each Lender will cooperate with the Hermes Agent, the Facility Agent and each other Lender, and take such action and/or refrain from taking such action as may be reasonably necessary, to ensure that the Hermes Insurance Policy and each CIRR Agreement continue in full force and effect and shall indemnify and hold harmless each other Lender in the event that the Hermes Insurance Policy or such CIRR Agreement (as the case may be) does not continue in full force and effect due to its gross negligence or wilful default.
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SECTION 11.14. Law and Jurisdiction
SECTION 11.14.1. Governing Law.
This Agreement and any non-contractual obligations arising out of or in respect of this Agreement shall in all respects be governed by and interpreted in accordance with English law.
SECTION 11.14.2. Jurisdiction.
For the exclusive benefit of the Facility Agent and the Lenders, the parties to this Agreement irrevocably agree that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and that any proceedings may be brought in those courts. The Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Section, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum.
SECTION 11.14.3. Alternative Jurisdiction.
Nothing contained in this Section shall limit the right of the Facility Agent or the Lenders to commence any proceedings against the Borrower in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
SECTION 11.14.4. Service of Process.
Without prejudice to the right of the Facility Agent or the Lenders to use any other method of service permitted by law, the Borrower irrevocably agrees that any writ, notice, judgment or other legal process shall be sufficiently served on it if addressed to it and left at or sent by post to RCL Cruises Ltd., presently at Building 2, Aviator Park, Station Road, Addlestone, Surrey KT15 2PG, Attention: General Counsel, and in that event shall be conclusively deemed to have been served at the time of leaving or, if posted, at 9:00 am on the third Business Day after posting by prepaid first class registered post.
SECTION 11.15. Confidentiality.
Each of the Facility Agent and the Lenders agrees to maintain and to cause its Affiliates to maintain the confidentiality of all information provided to it by the Obligors or any Subsidiary of the Obligors, or by the Facility Agent on an Obligor's or such Subsidiary's behalf, under this Agreement, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement or in connection with other business now or hereafter existing or contemplated with the Obligors or any Subsidiary, except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by it or its Affiliates or their respective directors, officers, employees and agents, or (ii) was or becomes available on a non-confidential basis from a source other than the Obligors or any of their respective Subsidiaries so long as such source is not, to its knowledge, prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Obligors or
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any of their respective Affiliates; provided, however, that it may disclose such information (A) at the request or pursuant to any requirement of any self-regulatory body, governmental body, agency or official to which the Facility Agent, any Lender or any of their respective Affiliates is subject or in connection with an examination of the Facility Agent, such Lender or any of their respective Affiliates by any such authority or body, including without limitation the Federal Republic of Germany; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable requirement of law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Facility Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder; (F) to the Facility Agent or such Lender's independent auditors, counsel, and any other professional advisors of the Facility Agent or such Lender who are advised of the confidentiality of such information; (G) to any participant or assignee, provided that such Person agrees to keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (H) as to the Facility Agent, any Lender or their respective Affiliates, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which an Obligor or any Subsidiary is party with the Facility Agent, such Lender or such Affiliate; (I) to its Affiliates and its Affiliates' directors, officers, employees, professional advisors and agents, provided that each such Affiliate, director, officer, employee, professional advisor or agent shall keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; and (J) to any other party to the Agreement. Each of the Facility Agent and the Lenders shall be responsible for any breach of this Section 11.15 by any of its Affiliates or any of its or its Affiliates' directors, officers, employees, professional advisors and agents.
SECTION 11.16. CIRR requirements.
The Borrower acknowledges that:
(a)    the government of the Federal Republic of Germany, the Federal Audit Court or any authorised representatives specified by these bodies shall be authorised at any time to inspect and make or demand copies of the records, accounts, documents and other deeds of any or all of the Lenders relating to this Agreement;
(b)    in the course of its activity as the Facility Agent, the Facility Agent may:
(i)    provide the government of the Federal Republic of Germany with information concerning the transactions to be handled by it under this Agreement; and
(ii)    disclose information concerning the subsidised transaction contemplated by this Agreement in the context of internationally agreed consultation/notification proceedings and statutory specifications, including information received from the Lenders relating to this Agreement; and
(c)    the Facility Agent and (to the extent the Lenders have entered into an Option A Refinancing Agreement with KfW) the Lenders are entitled to disclose to KfW:
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(i)    circumstances pertaining to the Loan, proper repayment and collateralisation;
(ii)    extraordinary events which may jeopardise the proper servicing of the Loan;
(iii)    any information required by KfW with respect to the proper use of any refinancing funds granted to the respective Lender in respect of the Loan; and
(iv)    the Loan Documents;
provided that KfW agrees to keep such information confidential to the same extent required of Lenders pursuant to Section 11.15.
SECTION 11.17. Mitigation.
(a)    If the provisions of Section 3.2(c), 3.2(d) or 9.1.11 apply (and having regard to clause (b) below), the Facility Agent, the Borrower and the Lenders (or, in the case of Section 3.2(c) or 3.2(d), any affected Lender) shall discuss in good faith (but without obligation) for a period (the "Mitigation Period") of not less than 30 days (and which in the case of Section 3.2(d) shall commence on the first day of the 50-day period referred to in that Section and, in the case of Section 9.1.11, shall run concurrently with the 30 day period referred to in that Section) after (x) the date on which the Illegality Notice is given or (y) the date of Section 9.1.11 becomes applicable, as the case may be:
(i)    in the case of Section 3.2(c) or 3.2(d), what steps may be open to the relevant Lender to mitigate or remove such circumstances (including, without limitation, the possibility of assigning the Lender's Commitment to an Affiliate or another Lending Office); and
(ii)    in the case of Section 9.1.11, the circumstances in which Section 9.1.11 has become applicable and whether there are any steps or actions which can be taken to remove the effect of Section 9.1.11 and/or reinstate the Hermes Insurance Policy.
If the provisions of Section 3.2(d) apply, if requested by the Borrower, the affected Lender shall, without limiting such Lender's obligation to enter into discussions as set forth above in this Section 11.17(a), use commercially reasonable efforts to transfer its portion of the Loan to one or more third parties at par during the Mitigation Period in the manner contemplated by Section 3.2(d).
(b)    To the extent required by or considered necessary by any Party, the Lenders (and, in the case of Section 3.2(c) or 3.2(d), any affected Lender) shall use commercially reasonable efforts to include Hermes in all foregoing discussions.
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(c)    If an Illegality Notice shall be given by any Lender during the period falling 20 days prior to the anticipated Delivery Date, the affected Lender will use all reasonable efforts to accelerate the mitigation steps of the type described or to be discussed pursuant to this Section to try and enable the Commitment of such Lender to still be available for drawing by the Borrower one (1) Business Day (where the Loan is to be denominated in EUR) or two (2) Business Days (where the Loan is to be denominated in Dollars) prior to the Delivery Date in the manner contemplated by this Agreement.
SECTION 11.18. Modification and/or discontinuation of benchmarks
(a)    If a Screen Rate Replacement Event has occurred then, promptly thereafter, the Facility Agent and the Borrower will enter into negotiations with a view to amend this Agreement to replace the LIBO Rate or, as the case may be, the EURO Rate with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks where such negotiations will take into account the then current market standards and will be conducted with a view to reducing or eliminating, to the extent reasonably practicable, any transfer of economic value from one party to another party (any such proposed rate, a "Benchmark Successor Rate"), together with any proposed Benchmark Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 P.M. (New York City time) on the fifth Business Day after the Facility Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, the Required Lenders have delivered to the Facility Agent written notice that such Lenders does not accept such amendment. Such Benchmark Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Facility Agent, such Benchmark Successor Rate shall be applied in a manner as otherwise reasonably determined by the Facility Agent.
(b)    If no Benchmark Successor Rate has been determined and either (x) the circumstances set out in paragraph (a) of the definition of "Screen Rate Replacement Event" in Section 1.1 exist or (y) the Scheduled Unavailability Date has occurred, the Facility Agent will promptly so notify the Borrower and each Lender. Thereafter, (i) the obligation of the Lenders to make or maintain the Loan shall be suspended and (ii) Screen Rate shall no longer be utilized in determining the LIBO Rate or, as the case may be, the EURO Rate. Upon receipt of such notice, the Borrower may revoke any pending Loan Request.
(c)    Until such time as a Benchmark Successor Rate and Benchmark Successor Rate Conforming Changes have been determined and agreed and without prejudice to the obligation of the parties to enter into negotiations with a view to determining or agreeing a Benchmark Successor Rate pursuant to paragraph (a) above, for any Interest Period starting after the Screen Rate Replacement Event, the LIBO Rate or, as the case may be, the EURO Rate shall be replaced by the weighted average of the
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rates notified to the Agent by each Lender five Business Days prior to the first day of that Interest Period, to be that which expresses as a percentage rate per annum the cost the relevant Lender would have of funding an amount equal to its participation in the Loan during the relevant Interest Period from whatever source it may reasonably select. If such amount is less than zero, it shall be deemed to be zero.
(d)    The Facility Agent (acting on the instructions of the Required Lenders) and the Borrower shall, during the period between 1 April 2021 and 30 June 2021, enter into negotiations in good faith with a view to agreeing a basis upon which a Benchmark Successor Rate can be used in replacement of the Screen Rate, together with any associated Benchmark Successor Rate Conforming Changes, and a timetable for the implementation of these changes so that the appropriate changes can be made prior to the Scheduled Unavailability Date.
(e)    Notwithstanding anything else herein, any definition of Benchmark Successor Rate shall provide that in no event shall such Benchmark Successor Rate be less than zero for purposes of this Agreement.
(f)    Section 3.4.6 shall not apply following the Screen Rate Replacement Event.
(g)    Where paragraph (a) above applies, the Borrower shall, within three Business Days of demand, reimburse the Facility Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Facility Agent in responding to, evaluating, negotiating or complying with the requirements set out in that paragraph.
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IN WITNESS WHEREOF, the parties hereto have caused this Hull No. S-720 Credit Agreement to be executed by their respective officers thereunto duly authorised as of the day and year first above written.
ROYAL CARIBBEAN CRUISES LTD. as Guarantor
By _________________________
Name:
Title:
Address:    1050 Caribbean Way
Miami, Florida 33132
Facsimile No.:    (305) 539-0562
Email:        agibson@rccl.com
bstein@rccl.com
Attention: Vice President, Treasurer
Copy to: General Counsel

Signature Page to Credit Agreement                Page 128
KFW IPEX-BANK GMBH, as Hermes Agent, Facility Agent and Lender
Commitment
100% of the US Dollar Maximum Loan Amount By__________________________Name:
Title:
By _________________________
Name:
Title:
Address:     Palmengartenstrasse 5-9
D-60325 Frankfurt am Main
Germany
Facsimile No.:     +49 (69) 7431 3768
Email:        maritime-industries-administration@kfw.de
Attention:    Maritime Industries
With a copy to:    Credit Operations
Facsimile No.:    +49 (69) 7431 2944



    Page 129
Exhibit A
Form of Loan Request
[OMITTED]

    
Exhibit B
Table of Commitments
[OMITTED]




    
SIGNATORIES
Amendment No. 3 in respect of Hull S-720

Original Borrower
Silversea Cruise Holding Ltd.    )
Name: Roberto Martinoli    ) /s/ Roberto Martinoli
Title: Chief Executive Officer    )

Guarantor and New Borrower
Royal Caribbean Cruises Ltd.    )
Name: Nicholas Cullinan    ) /s/ Nicholas Cullinan
Title: Attorney-in-Fact    )


    [Signature Page to Amendment No. 3 - Hull S-720]
Facility Agent
KfW IPEX-Bank GmbH    )
Name: B. Behrends-Troost / O. Sande    ) /s/ B. Behrends-Troost    /s/ O. Sande
Title: Director / AVP    )

Hermes Agent
KfW IPEX-Bank GmbH    )
Name: B. Behrends-Troost / O. Sande    ) /s/ B. Behrends-Troost    /s/ O. Sande
Title: Director / AVP    )

Existing Lenders
KfW IPEX-Bank GmbH    )
Name: B. Behrends-Troost / O. Sande    ) /s/ B. Behrends-Troost    /s/ O. Sande
Title: Director / AVP    )

MUFG Bank, Ltd.    )
Name: Francois-Xavier Reignier    ) /s/ Francois-Xavier Reignier    
Title: Managing Director    )

Société Générale    )
Name: Stefan Euler / Olga Schneider    ) /s/ Stefan Euler        /s/ Olga Schneider
Title: Managing Director / Vice President    )

Helaba Landesbank     )
Hessen-Thüringen Girozentrale    )
Name: Ralf Lichtenthaler / Lucas Hell    ) /s/ Ralf Lichtenthaler    /s/ Lucas Hell
Title:    )

DZ BANK AG, New York Branch    )
Name: Steffen Philipp / Maximilian Bös    ) /s/ Steffen Philipp        /s/ Maximilian Bös
Title: Senior Vice President / Vice President    )

Standard Chartered Bank    )
Name: James Perkins    ) /s/ James Perkins
Title: Manager    )
    [Signature Page to Amendment No. 3 - Hull S-720]
Bayerische Landesbank, New York Branch    )
Name: Andrew Kjoller / Gina Sandella    ) /s/ Andrew Kjoller        /s/ Gina Sandella
Title: Executive Director / Vice President    )

Commerzbank AG, New York Branch    )
Name: Giovanni Baldini / Christina S. Serrano    ) /s/ Giovanni Baldini        /s/ Christina S. Serrano
Title:    )

New Lenders
AKA AUSFUHRKREDIT-GESELLSCHAFT MBH     )
Name: Matthias Wietbrock / Emma Hartmann     ) /s/ Matthias Wietbrock /s/ Emma Hartmann
Title: Director / Vice President EAF            )
            
Oldenburgische Landesbank Aktiengesellschaft        )
Name: Dirk Stamer / Martin Schmidt                ) /s/ Dirk Stamer /s/ Martin Schmidt
Title: Executive Director / Export Finance Specialist        )
    [Signature Page to Amendment No. 3 - Hull S-720]
Exhibit 31.1


 
CERTIFICATIONS
 
I, Richard D. Fain, certify that:
 
1.                    I have reviewed this quarterly report on Form 10-Q of Royal Caribbean Cruises Ltd.;
 
2.                    Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
 
3.                    Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
 
4.                    The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
 
a)            Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
 
b)            Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
 
c)             Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
 
d)            Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
 
5.                   The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
 
a)             All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
 
b)             Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
 
Date:
October 29, 2021
 
/s/ Richard D. Fain
Richard D. Fain
Chairman and
Chief Executive Officer
(Principal Executive Officer)


Exhibit 31.2

 
CERTIFICATIONS
 
I, Jason T. Liberty, certify that:
 
1.                    I have reviewed this quarterly report on Form 10-Q of Royal Caribbean Cruises Ltd.;
 
2.                   Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
 
3.                   Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
 
4.                   The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
 
a)             Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
 
b)            Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
 
c)             Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
 
d)            Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
 
5.                    The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
 
a)            All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
 
b)             Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
 
Date:
October 29, 2021
 
/s/ Jason T. Liberty
Jason T. Liberty
Executive Vice President, Chief Financial Officer
(Principal Financial Officer)


Exhibit 32.1

 
In connection with the quarterly report on Form 10-Q for the quarterly period ended September 30, 2021 as filed by Royal Caribbean Cruises Ltd. with the Securities and Exchange Commission on the date hereof (the “Report”), Richard D. Fain, Chief Executive Officer, and Jason T. Liberty, Chief Financial Officer, each hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to his knowledge:
 
1.                      the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, and
 
2.                     the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Royal Caribbean Cruises Ltd.
 
Date:
October 29, 2021
   
       
    By: /s/ Richard D. Fain
      Richard D. Fain
Chairman and
      Chief Executive Officer
      (Principal Executive Officer)
       
    By: /s/ Jason T. Liberty
      Jason T. Liberty
      Executive Vice President, Chief Financial Officer
      (Principal Financial Officer)