| changes in cruise capacity, as well as capacity changes in the overall vacation industry; | ||
| introduction of competing itineraries and other products by other companies; | ||
| changes in general economic, business and geo-political conditions; | ||
| reduced consumer demand for cruises as a result of any number of reasons, including armed conflict, terrorist attacks, geo-political and economic uncertainties or the unavailability of air service, and the resulting concerns over the safety and security aspects of traveling; | ||
| lack of acceptance of new itineraries, products or services by our targeted customers; | ||
| our ability to implement brand strategies and our shipbuilding programs, and to continue to expand our business worldwide; | ||
| costs of new initiatives, including those involving our inter-island Hawaii cruise operations; | ||
| changes in interest rates, fuel costs, or foreign currency rates; | ||
| delivery schedules of new ships; | ||
| risks associated with operating internationally; | ||
| impact of the spread of contagious diseases; | ||
| accidents and other incidents affecting the health, safety, security and vacation satisfaction of passengers and causing damage to ships, which could cause the modification of itineraries or cancellation of a cruise or series of cruises; | ||
| our ability to attract and retain qualified shipboard crew and maintain good relations with employee unions; |
1
| changes in other operating costs such as crew, insurance and security costs; | ||
| continued availability of attractive port destinations; | ||
| the impact of pending or threatened litigation; | ||
| the ability to obtain financing on terms that are favorable or consistent with our expectations; | ||
| changes involving the tax, environmental, health, safety, security and other regulatory regimes in which we operate; | ||
| emergency ship repairs; | ||
| the implementation of regulations in the U.S. requiring U.S. citizens to obtain passports for travel to additional foreign destinations; and | ||
| weather and natural disasters. |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
Years ended December 31,
(Dollars in thousands)
2002
2003
2004
2005
2006
$
896,847
$
976,124
$
990,758
$
1,194,461
$
1,438,996
281,698
321,909
353,238
435,262
537,313
1,178,545
1,298,033
1,343,996
1,629,723
1,976,309
242,921
292,453
257,947
328,899
425,648
109,887
112,942
120,250
141,957
186,240
179,045
204,365
243,355
323,621
412,943
62,681
77,088
78,013
119,412
164,530
75,358
79,154
81,448
94,105
102,324
22,046
28,603
26,226
160,457
191,384
204,030
211,929
249,471
830,349
957,386
1,007,089
1,248,526
1,567,382
178,704
186,923
204,560
225,240
249,250
83,187
95,765
76,937
85,615
119,097
18,155
14,500
8,000
1,092,240
1,258,229
1,303,086
1,559,381
1,943,729
86,305
39,804
40,910
70,342
32,580
(1,748
)
(802
)
(1,434
)
(4,803
)
(3,392
)
53,396
50,849
48,886
87,006
136,478
1,419
2,165
11,548
(28,096
)
30,393
53,067
52,212
59,000
54,107
163,479
$
33,238
$
(12,408
)
$
(18,090
)
$
16,235
$
(130,899
)
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As of or for the years ended December 31,
(Dollars in thousands, except
operating data and ratios)
2002
2003
2004
2005
2006
$
116,604
$
199,141
$
172,424
$
60,416
$
63,530
2,486,981
2,660,991
2,529,739
3,113,229
3,816,292
3,340,395
3,593,676
3,464,546
3,984,227
4,629,624
189,175
188,364
226,081
276,644
314,050
175,438
529,758
191,225
220,571
298,768
267,916
476,995
86,198
140,694
154,638
1,316,428
1,019,392
1,604,331
1,965,983
2,405,357
1,302,967
372,589
5,734
2,631
1,744
12
12
12
12
12
88,471
1,006,578
1,350,977
1,377,704
1,455,067
819,660
878,067
874,926
981,665
1,153,844
6,180,457
6,543,896
6,744,609
7,613,100
8,807,632
5,951,273
6,277,888
6,370,096
7,172,040
8,381,445
103.9
%
104.2
%
105.9
%
106.1
%
105.1
%
11
10
11
12
14
153,777
86,310
153,758
136,828
147,504
(439,728
)
(275,588
)
(750,710
)
(678,309
)
(756,245
)
318,733
271,815
570,235
429,473
611,855
390,857
295,626
748,267
658,795
809,403
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a substantial portion of our cash flow from operations will be required to service
debt, thereby reducing the funds available to us for other purposes;
our ability to obtain additional financing for working capital, capital expenditures
and general corporate purposes, including upgrades of our current ships or the construction
of new ships, may be limited; and
our high level of leverage may hinder our ability to withstand competitive pressures or
adjust rapidly to changing market conditions.
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flexible dining policy in our dining rooms; no fixed dining times or pre-assigned
seating;
up to 11 dining locations ranging from casual fast-food outlets to à la carte gourmet
and specialty ethnic restaurants;
resort-casual dress code acceptable throughout the ship, at all times;
increased service staff for a more personalized vacation experience;
replacement of cash tipping with an automated service charge system;
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diverse lifestyle activities, including cultural and educational onboard programs
along with an increased adventure emphasis for shore excursions; and
passenger-friendly disembarkation policies.
new ships are more attractive to passengers;
new ships are larger and have a more profitable mix of cabins, including a higher
percentage of cabins with private balconies for which passengers are willing to pay a
premium;
our new ships are faster than many of our competitors ships, giving us more flexibility
in designing new and attractive itineraries;
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new ships tend to provide greater operating economies of scale; and
our new ships have been designed and built to deliver Freestyle Cruising.
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Year Built/
Crew
Gross
Primary Areas of
Ship
Rebuilt
Berths
Capacity
Tons
Operation
2006
2,400
1,200
93,500
Alaska, Caribbean, Pacific
Coastal and Panama Canal
2005
2,380
1,100
93,500
Caribbean and Europe
2002
2,220
1,100
92,300
Bahamas, Bermuda, Caribbean,
Canada and New England
2001
2,240
1,100
91,700
Alaska, Mexico and Pacific Coastal
2001
1,940
900
78,300
Alaska, Caribbean, Hawaii,
Pacific Coastal and Panama Canal
1992/1999
1,460
700
40,900
Bahamas, Bermuda and Caribbean
1993/1998
1,740
700
50,800
Alaska and Hawaii
1992/1998
1,740
700
50,800
Caribbean, Europe, Panama Canal
and South America
1998
1,980
1,000
75,300
Alaska, Caribbean, Bahamas,
Canada and New England
1988
1,080
550
34,200
Panama Canal, South America and
Bermuda
(1)
Chartered from Star Cruises Limited with the anticipation that such ships will be
returned to Star Cruises Limited as new modern ships enter our fleet over time.
Primary
Crew
Gross
Areas of
Ship
Year Built
Berths
Capacity
Tons
Operation
2006
2,460
950
93,600
Hawaii
2005
2,140
950
80,400
Hawaii
1999
2,000
900
77,100
Hawaii
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Year Built/
Crew
Primary Areas
Ship
Rebuilt
Berths
Capacity
Gross Tons
of Operation
1965/1993
840
400
22,100
Mediterranean,
Scandinavia,
Antarctica, South
America and North
Africa
(1)
Chartered from Star Cruises Limited.
Ship
Expected Delivery Date
Berths
Gross Tons
Fourth Quarter 2007
2,400
93,500
Fourth Quarter 2009
4,200
150,000
Second Quarter 2010
4,200
150,000
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strict alcohol and drug policy, including frequent random tests and a zero tolerance
policy for alcohol use by senior officers and watch keepers at all times;
a policy of requiring the presence of at least two officers in the navigation center of
every cruise ship while at sea (except under certain low-risk situations);
a comprehensive fleet safety program with six traveling safety officers;
Navigation Conditions system involving the presence of additional officers on the
bridge when a cruise ship is operating in identified yellow zones or red
zonesspecific locations and situations identified as being potentially hazardous or
deviating from the normal course of the cruise ship;
procedure checklists;
performance of an internal and external audit at least annually to ensure safety
implementation, corrective action following incidents and continuous regular improvements;
standardization and upgrade of equipment on our ships;
installation of automatic identification system, or AIS, in the navigation centers of
all of our ships;
psychological profiling of officers;
bridge and crew resource management courses for all bridge officers;
centralized and automated engine control (except on
Marco Polo
);
additional onboard training in the use of the navigation and safety equipment; and
stringent implementation of additional controls and procedures, which have been
published as safety recommendations, following investigation analyses of incidents or
accidents in other parts of the cruise industry.
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protection and indemnity insurance (that is, coverage for third party liabilities) on
each ship;
war risk insurance, including terrorist risk insurance, on each ship in an amount equal
to the total insured hull value, subject to certain coverage limits, deductibles and
exclusions. The terms of our marine war risk policies include provisions where
underwriters can give seven days notice to the insured that the policies will be cancelled,
which is typical for policies in the marine industry;
insurance for cash onboard; and
insurance for our shoreside property and general liability risks.
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deployment of environmental officers and environmental engineers on all ships;
a dedicated, full time environmental staff at shoreside;
a comprehensive environmental training and awareness program;
an environmental hotline;
advanced wastewater treatment systems installed or in the process of being installed on
100% of the fleet;
our own patent-pending ballast water management system to prevent discharge of damaging
non-indigenous marine species in ballast water;
advanced treatment systems for oily bilge water installed on all ships; and
an innovative bio-sludge disposal and used lube recycling programs.
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1
All subsidiaries are 100% owned by their immediate parent companies.
2
NCL Corporation Ltd. is a wholly-owned subsidiary of Star Cruises Limited.
3
Ship-holding companies for Bahamas flagged-ships.
4
Operates Bahamas flag fleet, including ships under charter agreements with Star
Cruises Limited (
Norwegian Crown
,
Norwegian Dream
,
Norwegian Majesty
,
Marco Polo
and
Norwegian
Wind
) and performs under contract with NCL America Inc. certain marketing, ticket issuance and
other services.
5
Ship-holding companies for U.S.-flagged ships.
6
Operates U.S.-flagged fleet.
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Cruise Passengers
Berths
Sourced in
Marketed in
Calendar Year
North America (1)
North America (2)
7,640,000
197,553
8,195,000
215,397
9,107,000
220,187
9,670,000
227,717
10,180,000
246,759
(1)
Based on passengers carried for at least two consecutive nights for the calendar year.
(2)
As of the end of the calendar year. These figures include ships that are marketed in North
America and elsewhere.
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changes in cruise capacity, as well as capacity changes in the overall vacation industry;
introduction of competing itineraries and other products by other companies;
changes in general economic, business, and geo-political conditions;
reduced consumer demand for cruises as a result of any number of reasons, including
armed conflict, terrorists attacks, geo-political and economic uncertainties or the
unavailability of air service, and the resulting concerns over the safety and security
aspects of traveling;
lack of acceptance of new itineraries, products or services by our targeted
customers;
our ability to implement brand strategies and our shipbuilding programs, and to
continue to expand our business worldwide;
costs of new initiatives, including those involving our inter-island Hawaii cruise operations;
changes in interest rates, fuel costs or foreign currency rates;
delivery schedules of new ships;
risks associated with operating internationally;
impact of the spread of contagious diseases;
accidents and other incidents affecting the health, safety, security and vacation
satisfaction of passengers and causing damage to ships, which could cause the modification
of itineraries or cancellation of a cruise or series of cruises;
our ability to attract and retain qualified shipboard crew and maintain good
relations with employee unions;
changes in other operating costs, such as crew, insurance and security costs;
continued availability of attractive port destinations;
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the impact of pending or threatened litigation;
the ability to obtain financing on terms that are favorable or consistent with our expectations;
changes involving the tax, environmental, health, safety, security and other
regulatory regimes in which we operate;
emergency ship repairs;
the implementation of regulations in the U.S. requiring U.S. citizens to obtain
passports for travel to additional foreign destinations; and
weather and natural disasters.
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Commissions, transportation and other expenses consist of those amounts directly
associated with passenger ticket revenues. These amounts include travel agent
commissions, air and other transportation expenses, credit card fees, and certain port
expenses.
Onboard and other expenses consist of direct costs that are incurred primarily in
connection with onboard and other revenues. These costs are incurred in connection with
shore excursions, beverage sales, land packages, and sales of travel protection for
vacation packages.
Payroll and related expenses represent the cost of wages and benefits for shipboard
employees.
Fuel expenses include fuel costs, the impact of fuel hedges and delivery costs.
Food expenses consist of food costs for passengers and crew, which typically vary
according to the number of passengers onboard a particular cruise ship.
Ship charter costs consist of amounts paid for chartering ships.
Other operating expenses consist of costs such as repairs and maintenance including
dry-docking costs, ship insurance and other ship expenses.
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Years Ended December 31,
2004
2005
2006
$
1,343,996
$
1,629,723
$
1,976,309
$
1,007,089
$
1,248,526
$
1,567,382
$
40,910
$
70,342
$
32,580
$
(18,090
)
$
16,235
$
(130,899
)
Years Ended December 31,
2004
2005
2006
73.7
%
73.3
%
72.8
%
26.3
%
26.7
%
27.2
%
100.0
%
100.0
%
100.0
%
19.2
%
20.2
%
21.5
%
8.9
%
8.7
%
9.4
%
18.1
%
19.9
%
20.9
%
5.8
%
7.3
%
8.3
%
6.1
%
5.8
%
5.2
%
1.6
%
1.7
%
1.3
%
15.2
%
13.0
%
12.7
%
74.9
%
76.6
%
79.3
%
15.2
%
13.8
%
12.6
%
5.7
%
5.3
%
6.0
%
1.1
%
%
0.4
%
96.9
%
95.7
%
98.3
%
3.1
%
4.3
%
1.7
%
(0.1
)%
(0.3
)%
(0.1
)%
3.7
%
5.3
%
6.9
%
0.9
%
(1.7
)%
1.5
%
4.5
%
3.3
%
8.3
%
(1.4
)%
1.0
%
(6.6
)%
Years Ended December 31,
2004
2005
2006
874,926
981,665
1,153,844
6,744,609
7,613,100
8,807,632
6,370,096
7,172,040
8,381,445
105.9
%
106.1
%
105.1
%
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Years Ended December 31,
2004
2005
2006
$
990,758
$
1,194,461
$
1,438,996
353,238
435,262
537,313
1,343,996
1,629,723
1,976,309
257,947
328,899
425,648
120,250
141,957
186,240
$
965,799
$
1,158,867
$
1,364,421
6,370,096
7,172,040
8,381,445
$
210.99
$
227.23
$
235.80
$
151.61
$
161.58
$
162.79
Years Ended December 31,
2004
2005
2006
$
1,007,089
$
1,248,526
$
1,567,382
204,560
225,240
249,250
1,211,649
1,473,766
1,816,632
257,947
328,899
425,648
120,250
141,957
186,240
$
833,452
$
1,002,910
$
1,204,744
6,370,096
7,172,040
8,381,445
$
190.21
$
205.49
$
216.74
$
130.84
$
139.84
$
143.74
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Expected
Approximate
Ship
Delivery Date
Berths
4th Quarter 2007
2,400
4th Quarter 2009
4,200
2nd Quarter 2010
4,200
Less than 1
1-3
3-5
More than 5
Total
year
years
years
years
$
3,471,428
$
311,701
$
623,378
$
955,057
$
1,581,292
50,703
5,795
10,375
7,864
26,669
47,905
21,005
26,676
224
2,398,455
501,193
1,102,716
794,546
93,081
8,158
15,908
16,153
52,862
16,429
3,072
5,490
6,486
1,381
28,022
14,598
12,686
738
$
6,106,023
$
865,522
$
1,797,229
$
1,781,068
$
1,662,204
(1)
Assumes LIBOR rate of 5.37% and EURIBOR of 3.85% for all periods and EURO/USD exchange
rate of 1.3199.
(2)
We are obligated under noncancellable operating leases primarily for offices and motor
vehicles.
(3)
Ship charter costs are for ships chartered from Star Cruises Limited.
(4)
Amounts represent contractual obligations with initial terms in excess of one year,
assumes EURO/USD of 1.3199.
(5)
Amounts represent future commitments with remaining terms in excess of one year to pay
for our usage of a New York City terminal and Fanning Island.
(6)
Amounts exclude interest. Capital leases are primarily for buses for Hawaii operations.
(7)
Amounts represent future commitments with remaining terms in excess of one year to pay
for primarily service and maintenance contracts.
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page F-15.
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Name
Age
Position with NCL
55
Chairman of the Board of Directors
51
Deputy Chairman of the Board of Directors, President and
Chief Executive Officer
70
Independent Director, Chairman of the Governance Committee
63
Independent Director, Chairman of the Compensation Committee
72
Independent Director, Chairman of the Audit Committee
44
Executive Vice President and Chief Financial Officer
54
Executive Vice President of Fleet Operations
46
Executive Vice President of Hawaii Operations
43
Executive Vice President of Sales, Marketing and
Passenger Services
55
Executive Vice President and General Counsel
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December 31,
2004
2005
2006
8,843
10,088
12,145
1,605
1,860
2,052
10,448
11,948
14,197
(1)
Does not include crew members that were on leave as of the respective dates.
Percentage Ownership in
Shareholder
Star Cruises Limited
37.02
%
36.01
%
(1)
GHL is a company incorporated in the Isle of Man acting as trustee of the Golden
Hope Unit Trust, a private unit trust which is held directly and indirectly by GZ Trust
Corporation as trustee of a discretionary trust established for the benefit of certain
members of the Lim Family.
(2)
RWB is a Malaysian company listed on Bursa Malaysia Securities Berhad in which
the Lim Family has a substantial indirect beneficial interest.
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(i)
A proposed class action suit was filed on August 1, 2000 in the
U.S. District Court for the Southern District of Texas against us, alleging that
we violated the Americans with Disabilities Act of 1990 (ADA) in our treatment
of physically impaired passengers. The same plaintiffs also filed on the same
date a proposed class action suit in a Texas state court alleging that we and a
third party violated Texas Deceptive Trade Practices and Consumer Protection
Act. The state court judge granted our motion for summary judgment and the
plaintiff filed an appeal which is currently pending. On June 6, 2005, the U.S.
Supreme Court ruled in the Federal matter that the ADA is applicable to foreign
flagged cruise ships that operate in U.S. waters to the same extent that it
applies to U.S. flagged ships. The U.S. Supreme Court remanded the case to the
Fifth Circuit Court of Appeals to determine which claims in the lawsuit remain
and the Fifth Circuit remanded the case to the trial court. We have filed a
motion for summary judgment in the trial court which is currently pending.
(ii)
A proposed class action suit was filed on December 20, 2000 in a
Florida State Court alleging that we discriminated against disabled persons in
violation of the ADA and the Florida Trade Act on several of our ships.
Discovery has commenced. We believe that we have meritorious defenses to these
claims and, accordingly, are defending vigorously this action.
(iii)
A proposed class action suit was filed on May 17, 2001 in the U.S.
District Court for the Southern District of New York alleging that during the
period from January 1998 through March 2005, we failed to pay unlicensed
seafarers overtime wages in accordance with their contracts of employment. The
court entered an order certifying the case as a class action. In March 2005, the
parties reached a settlement which was
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subsequently approved by the court. We
believe that the ultimate outcome of this matter will not have a material impact on our financial position, results of
operations or cash flows.
(iv)
On July 25, 2002, we were served with a complaint in which a former
employee alleged that we failed to pay him severance pay/employment benefits
following his discharge. The matter was tried before a jury in January 2007 at
which time a verdict in favor of plaintiff was returned. Trial counsel is
currently evaluating possible appealable issues.
(v)
In May 2003, an explosion in the boiler room onboard
Norway
resulted in the death of eight crew members and the injury of approximately 20
other crew members. All personal injury claims stemming from this incident are
covered by our insurance. The incident is currently under investigation by
regulatory authorities and the United States Attorneys Office for the Southern
District of Florida. We are cooperating with the investigation. To date, none
of the agencies involved has rendered opinions or conclusions concerning the
incident.
(vi)
On or about February 3, 2006, we were served with a class action
complaint filed in the United States District Court for the Southern District of
New York alleging copyright infringement stemming from performances of certain
portions of copyrighted music aboard our ships. We believe that we have
meritorious defenses to these claims and, accordingly, are defending vigorously
this action.
(vii)
On June 16, 2006, a complaint was filed against us in the Circuit
Court of Miami-Dade County, Florida, alleging breach of contract and fraudulent
misrepresentation stemming from two 2004 charter sailings of
Pride of Aloha
. We
believe that we have meritorious defenses to these claims and, accordingly, are
defending vigorously this action.
(viii)
On July 14, 2006, we were served with a complaint filed in Florida State court
on behalf of a former onboard concessionaire alleging breach of contract and
unjust enrichment. We believe that we have meritorious defenses to these claims
and, accordingly, are defending vigorously this action.
(ix)
On August 24, 2006, we were served with a complaint by the U.S.
Equal Employment Opportunity Commission to correct alleged unlawful employment
practices on the basis of national origin and religion and to provide relief to
seven former employees who were allegedly terminated as a result of same. We
believe that we have meritorious defenses to these claims and, accordingly, are
defending vigorously this action.
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60
61
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Total Fees
For the years ended December 31,
2005
2006
(in thousands of dollars)
$
1,275
$
873
139
37
348
145
2
$
1,762
$
1,057
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62
63
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64
1
2
3
4
NCL Corporation Ltd.
By:
/s/
Bonnie S. Biumi
Name:
Bonnie S. Biumi
Title:
Executive Vice President and Chief Financial Officer
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Exhibit
number
Description of exhibit
Memorandum of Association of NCL Corporation Ltd.*
Bye-Laws of NCL Corporation Ltd.*
Indenture, dated July 15, 2004, between NCL Corporation Ltd. and JPMorgan Chase Bank, N.A.,
as Indenture Trustee with respect to $250 million 10 5/8% Senior Notes due 2014*
$626.9 million Syndicated Term Loan, dated as of June 26, 1999, as amended by four
supplemental agreements, among Norwegian Star Limited, Norwegian Dawn Limited and a syndicate
of international banks and related Guarantee by NCL Corporation Ltd.*+
Fifth Supplemental Deed, dated as of 30 September 2005, to $626.9 million Syndicated Term
Loan, among Norwegian Dawn Limited, NCL Corporation Ltd. and a syndicate of international
banks.**
$225.0 million Norwegian Sun Loan, dated as of July 9, 2003, as amended, among Norwegian Sun
Limited and a syndicate of international banks and related Guarantee by NCL Corporation Ltd.*+
Second Supplemental Deed, dated as of 30 September 2005, to $225.0 million Norwegian Sun
Loan, among Norwegian Sun Limited, NCL Corporation Ltd. and a syndicate of international
banks.**
Euro 298.0 million Pride of America Loans, dated as of April 4, 2003, among Ship Holding LLC
and a syndicate of international banks and related Guarantee by NCL Corporation Ltd.*+
Supplemental Amendments, to Euro 298.0 million Pride of America Loans, among Pride of America
Ship Holding, Inc., NCL Corporation Ltd. and a syndicate of international banks.**
$800.0 million Senior Secured Credit Facility, dated as of July 7, 2004, among NCL
Corporation Ltd. and a syndicate of international banks.*
Supplemental Deed, dated as of 30 September 2005, to $800.0 million Senior Secured Credit
Facility, among Norwegian Star Limited, Norwegian Spirit Ltd., Pride of Aloha, Inc., NCL
Corporation Ltd. and a syndicate of international banks.**
Facility Agreement, dated as of 23 September 2005, in connection with Letters of Credit
required by the Merchant Services Bankcard Agreement, by and among NCL Corporation Ltd. and a
syndicate of international banks.**
Euro 334.1 million Norwegian Jewel Loan, dated as of April 20, 2004, among Norwegian Jewel
Limited and a syndicate of international banks and related Guarantee by NCL Corporation Ltd.*+
Supplemental Deed, dated as of 30 September 2005, to Euro 334.1 million Norwegian Jewel Loan,
among Norwegian Jewel Limited, NCL Corporation Ltd. and a syndicate of international banks.**
Euro 308.1 million Pride of Hawaii Loan, dated as of April 20, 2004, as amended, among Pride
of Hawaii, Inc. and a syndicate of international banks and related Guarantee by NCL
Corporation Ltd.*+
Table of Contents
Exhibit
number
Description of exhibit
Second Supplemental Deed, dated as of 30 September 2005, to Euro 308.1 million Pride of
Hawaii Loan, among Pride of Hawaii, Inc., NCL Corporation Ltd. and a syndicate of
international banks.**
Merchant Services Bankcard Agreement, dated as of March 26, 2004, among NCL Corporation Ltd.,
Chase Merchant Services, LLC and JPMorgan Chase Bank.*
Bareboat Charter Agreement, dated April 20, 2004, between Crown Odyssey Limited and NCL
(Bahamas) Ltd.*+
Bareboat Charter Agreement, dated April 20, 2004, between Crown Wind Limited and NCL
(Bahamas) Ltd.*+
Bareboat Charter Agreement, dated April 20, 2004, between Ocean Dream Limited and NCL
(Bahamas) Ltd.*+
Bareboat Charter Agreement, dated April 20, 2004, between Ocean Voyager Limited and NCL
(Bahamas) Ltd.*+
Amended and Restated Shipbuilding Contract for Pride of America, dated February 5, 2003, between Ship
Holding LLC and
Lloyd Werft
Bremerhaven GmbH,
as amended by
addendum No. 1
dated March 7,
2003, addendum No.
2 dated March 14,
2003 and addendum
No. 3 dated July 1,
2004.*+
Shipbuilding Contract for Hull No. 667, dated September 15, 2003, between Arrasas Limited and
Jos. L. Meyer GmbH, as amended by addendum No. 1 dated March 25, 2004.*+
Shipbuilding Contract for Hull No. 668, dated September 15, 2003, between Arrasas Limited,
Pride of Hawaii, Inc. and Jos. L. Meyer GmbH, as amended by addendum No. 1 dated April 13,
2004.*+
Shipbuilding Contract for Hull No. S669, dated December 24, 2004, between Hull 669 Ltd., NCL
Corporation Ltd. and Jos. L. Meyer GmbH.*+
Shipbuilding Contract for Hull No. S670, dated May 3, 2005, between Newbuild Holding, Ltd.,
NCL Corporation Ltd. and Jos. L. Meyer GmbH.*+
Up to Euro 624.0 million Revolving Loan Facility Agreement, dated October 7, 2005, among NCL
Corporation Ltd., and a syndicate of international banks.**
Sixth Supplemental Deed, dated November 13, 2006, to $626.9 million Syndicated Term Loan,
dated as of June 26, 1999, as amended, by and among Norwegian Dawn
Limited and a syndicate of international banks and a related
Guarantee by NCL Corporation Ltd.++
Third Supplemental Deed, dated November 13, 2006, to $225.0 million Norwegian Sun Loan, dated
as of July 9, 2003, as amended, by and among Norwegian Sun Limited and a syndicate of
international banks and a related Guarantee by NCL Corporation Ltd.++
Seventh Supplemental Deed to Euro 258.0 million Pride of America Loans and Sixth Supplemental
Deed to Euro 40.0 million Pride of America Loans, both dated November 13, 2006, to Euro 298.0
million Pride of America Loans, dated as of April 4, 2003, and amended and restated by an
agreement dated April 20, 2004, by and among Pride of America Ship Holding, Inc. and a
syndicate of international banks and a related Guarantee by NCL
Corporation Ltd.++
Table of Contents
Exhibit
number
Description of exhibit
Second Supplemental Deed, dated November 13, 2006, to $800.0 million Senior Secured Credit
Facility, dated as of July 7, 2004, as amended, by and among NCL Corporation Ltd., Norwegian
Star Limited, Norwegian Spirit, Ltd., Pride of Aloha, Inc., and a syndicate of international
banks.++
First Supplemental Deed, dated November 13, 2006, to Facility Agreement, dated September 23,
2005, in connection with Letters of Credit required by the Merchant Services Bankcard
Agreement, by and among NCL Corporation Ltd. and a syndicate of international banks.++
Second Supplemental Deed, dated April 4, 2006, and Third Supplemental Deed, dated November
13, 2006, to $334.1 million Norwegian Jewel Loan, dated as of April 20, 2004, as amended, by
and among Norwegian Jewel Limited and a syndicate of international banks and a related
Guarantee by NCL Corporation Ltd.++
Third Supplemental Deed, dated November 13, 2006, to Euro 308.1 million Pride of Hawaii
Loan, dated as of April 20, 2004, as amended, by and among Pride of Hawaii, Inc. and a
syndicate of international banks and a related Guarantee by NCL Corporation Ltd.++
First Supplemental Deed, dated November 13, 2006, to up to Euro 624.0 million Revolving Loan
Facility Gem/Pearl Agreement, dated October 7, 2005, as amended, by and among NCL Corporation
Ltd. and a syndicate of international banks.++
Euro 662.9 million Syndicated Loan Facility, dated September 22, 2006, by and among F3 One,
Ltd. and a syndicate of international banks and a related Guarantee by NCL Corporation Ltd.,
for the construction of Hull C33 at Aker Yards S.A.++
Euro 662.9 million Syndicated Loan Facility, dated September 22, 2006, by and among F3 Two,
Ltd. and a syndicate of international banks and a related Guarantee by NCL Corporation Ltd.,
for the construction of Hull D33 at Aker Yards S.A.++
$610.0 million Revolving Credit Facility, dated December 22, 2006, by and between NCL
Corporation Ltd. and a syndicate of international banks for the refinancing of m.v. Norwegian
Sun and m.v. Norwegian Dawn vessels (amongst other matters).++
Amendment Agreement, dated September 1, 2006, to Bareboat Charter Agreement, dated April 20,
2004, by and between Crown Odyssey Limited and NCL (Bahamas) Ltd.++
Addendum No. 1, dated November 28, 2006, to Bareboat Charter Agreement, dated April 20, 2004,
by and between Crown Wind Limited and NCL (Bahamas) Ltd.++
Addendum No. 1, dated November 28, 2006, to Bareboat Charter Agreement, dated April 20, 2004,
by and between Ocean Dream Limited and NCL (Bahamas) Ltd.++
Addendum No. 1, dated November 28, 2006, to Bareboat Charter Agreement, dated April 20, 2004,
by and between Ocean Voyager Limited and NCL (Bahamas) Ltd.++
Addendum No. 4, dated April 28, 2005, Addendum No. 5, dated June 7, 2005, and Addendum No. 6,
dated June 25, 2005, to Amended and Restated Shipbuilding Contract for Pride of America, dated
February 5, 2003, by and between Pride of America Ship Holding, Inc. and Lloyd Werft
Bremerhaven GmbH.++
Addendum, dated February 14, 2006, and Addendum No. 3, dated April 19, 2006, to
Shipbuilding Contract for Hull No. 668, dated September 15, 2003, by and among, Arrasas
Limited, Pride of Hawaii, Inc. and Jos. L. Meyer GmbH.++
Table of Contents
Exhibit
number
Description of exhibit
Addendum No. 1, dated February 14, 2006, to Shipbuilding Contract for Hull No. S669, dated
December 24, 2004, by and among Norwegian Pearl, Ltd., NCL Corporation Ltd. and Jos. L. Meyer
GmbH.
Shipbuilding Contract for Hull No. C33, dated September 7, 2006, by and between F3 One, Ltd.
and Aker Yards S.A., and Agreement on a Modification (AOM) No. 1, dated September 7, 2006,
AOM No. 2, dated September 7, 2006, AOM No. 3, dated September 7, 2006, and AOM No. 4, dated
September 7, 2006.++
Shipbuilding Contract for Hull No. D33, dated September 7, 2006, by and between F3 Two, Ltd.
and Aker Yards S.A., and AOM No. 1, dated September 7, 2006, AOM No. 2, dated September 7,
2006, AOM No. 3, dated September 7, 2006, and AOM No. 4, dated September 7, 2006.++
Side Letter Agreement, dated as of September 7, 2006, by and between, F3 One, Ltd., F3 Two,
Ltd. and Aker Yards S.A.++
Office Lease Agreement, dated November 27, 2006, by and between NCL (Bahamas) Ltd. and Hines
Reit Airport Corporate Center LLC and a related Guarantee by NCL
Corporation Ltd., and First Amendment, dated November 27, 2006.++
List of subsidiaries of NCL Corporation Ltd.*
Certification under Section 302 of the Sarbanes-Oxley Act of 2002.
Certification under Section 302 of the Sarbanes-Oxley Act of 2002.
Certification under Section 906 of the Sarbanes-Oxley Act of 2002.
*
Incorporated herein by reference to our registration statement on Form F-4 (File No. 333-128780).
**
Incorporated herein by reference to our annual report for the
fiscal year ended December 31, 2005 on Form 20-F filed on March 29, 2006 (File
No. 333-128780).
+
Confidential treatment has been granted with respect to certain portions of this exhibit. Omitted
portions have been filed separately with the SEC.
++
Confidential treatment has been requested with respect to
certain portions of this exhibit. Omitted portions have been filed
separately with the SEC.
Table of Contents
Index to Consolidated Financial Statements
Page(s)
F-1
F-2
F-3
F-4
F-5
F-6 to F-28
Table of Contents
F-1
NCL Corporation Ltd.
February 23, 2007
Table of Contents
Years Ended December 31, | ||||||||||||
2004 | 2005 | 2006 | ||||||||||
(Note 3) | ||||||||||||
Revenues
|
||||||||||||
Passenger ticket revenues
|
$ | 990,758 | $ | 1,194,461 | $ | 1,438,996 | ||||||
Onboard and other revenues
|
353,238 | 435,262 | 537,313 | |||||||||
|
||||||||||||
Total revenues
|
1,343,996 | 1,629,723 | 1,976,309 | |||||||||
|
||||||||||||
|
||||||||||||
Cruise operating expenses
|
||||||||||||
Commissions, transportation and other
|
257,947 | 328,899 | 425,648 | |||||||||
Onboard and other
|
120,250 | 141,957 | 186,240 | |||||||||
Payroll and related
|
243,355 | 323,621 | 412,943 | |||||||||
Fuel
|
78,013 | 119,412 | 164,530 | |||||||||
Food
|
81,448 | 94,105 | 102,324 | |||||||||
Ship charter costs
|
22,046 | 28,603 | 26,226 | |||||||||
Other operating
|
204,030 | 211,929 | 249,471 | |||||||||
|
||||||||||||
Total cruise operating expenses
|
1,007,089 | 1,248,526 | 1,567,382 | |||||||||
|
||||||||||||
Marketing, general and administrative expenses
|
204,560 | 225,240 | 249,250 | |||||||||
Depreciation and amortization expenses
|
76,937 | 85,615 | 119,097 | |||||||||
Impairment loss
|
14,500 | | 8,000 | |||||||||
|
||||||||||||
Total operating expenses
|
1,303,086 | 1,559,381 | 1,943,729 | |||||||||
|
||||||||||||
Operating income
|
40,910 | 70,342 | 32,580 | |||||||||
|
||||||||||||
|
||||||||||||
Non-operating (income) expenses
|
||||||||||||
Interest income
|
(1,434 | ) | (4,803 | ) | (3,392 | ) | ||||||
Interest expense, net of capitalized interest
|
48,886 | 87,006 | 136,478 | |||||||||
Other expenses (income), net
|
11,548 | (28,096 | ) | 30,393 | ||||||||
|
||||||||||||
Total non-operating expenses
|
59,000 | 54,107 | 163,479 | |||||||||
|
||||||||||||
Net (loss) income
|
$ | (18,090 | ) | $ | 16,235 | $ | (130,899 | ) | ||||
|
F-2
December 31, | ||||||||
2005 | 2006 | |||||||
(Note 3) | ||||||||
Assets
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$ | 60,416 | $ | 63,530 | ||||
Restricted cash
|
48,034 | 1,226 | ||||||
Accounts receivable, net
|
11,691 | 10,244 | ||||||
Note from Parent
|
12,325 | | ||||||
Amount due from Parent
|
| 5,033 | ||||||
Consumable inventories
|
29,460 | 33,392 | ||||||
Prepaid expenses and other
|
27,203 | 24,211 | ||||||
|
||||||||
Total current assets
|
189,129 | 137,636 | ||||||
|
||||||||
Property and equipment, net
|
3,113,229 | 3,816,292 | ||||||
Restricted cash
|
| 1,650 | ||||||
Goodwill
|
400,254 | 400,254 | ||||||
Tradenames
|
218,538 | 202,538 | ||||||
Other assets
|
63,077 | 71,254 | ||||||
|
||||||||
Total assets
|
$ | 3,984,227 | $ | 4,629,624 | ||||
|
||||||||
|
||||||||
Liabilities and Shareholders Equity
|
||||||||
Current liabilities:
|
||||||||
Current portion of long-term debt
|
$ | 140,694 | $ | 154,638 | ||||
Accounts payable
|
73,003 | 116,947 | ||||||
Accrued expenses and other liabilities
|
144,427 | 181,821 | ||||||
Amount due to Parent
|
3,141 | | ||||||
Advance ticket sales
|
276,644 | 314,050 | ||||||
|
||||||||
Total current liabilities
|
637,909 | 767,456 | ||||||
|
||||||||
Long-term debt
|
1,965,983 | 2,405,357 | ||||||
Other long-term liabilities
|
2,631 | 1,744 | ||||||
|
||||||||
Total liabilities
|
2,606,523 | 3,174,557 | ||||||
|
||||||||
|
||||||||
Commitments and contingencies (Note 10)
|
||||||||
|
||||||||
Shareholders equity
|
||||||||
Common stock, $1.00 par value; 12,000 shares authorized;
12,000 shares issued and outstanding
|
12 | 12 | ||||||
Additional paid-in capital
|
1,501,929 | 1,711,114 | ||||||
Unamortized stock option expense
|
(593 | ) | | |||||
Accumulated other comprehensive loss
|
| (1,516 | ) | |||||
Accumulated deficit
|
(123,644 | ) | (254,543 | ) | ||||
|
||||||||
Total shareholders equity
|
1,377,704 | 1,455,067 | ||||||
|
||||||||
Total liabilities and shareholders equity
|
$ | 3,984,227 | $ | 4,629,624 | ||||
|
F-3
Years Ended December 31, | ||||||||||||
2004 | 2005 | 2006 | ||||||||||
(Note 3) | ||||||||||||
Cash flows from operating activities
|
||||||||||||
Net (loss) income
|
$ | (18,090 | ) | $ | 16,235 | $ | (130,899 | ) | ||||
Adjustments to reconcile net (loss) income to
net cash provided by operating activities:
|
||||||||||||
Depreciation and amortization expenses
|
76,937 | 85,615 | 119,097 | |||||||||
Impairment loss
|
14,500 | | 8,000 | |||||||||
Loss (gain) on translation of debt
|
9,545 | (29,418 | ) | 35,122 | ||||||||
Other
|
440 | 3,359 | 1,347 | |||||||||
Changes in operating assets and liabilities:
|
||||||||||||
(Increase) decrease in accounts receivable
|
(951 | ) | (885 | ) | 1,447 | |||||||
Increase in consumable inventories
|
(349 | ) | (10,732 | ) | (3,932 | ) | ||||||
Decrease (increase) in prepaid expenses and other assets
|
16,711 | (1,300 | ) | (535 | ) | |||||||
(Decrease) increase in accounts payable
|
(1,640 | ) | 3,128 | 43,944 | ||||||||
Increase in accrued expenses and other liabilities
|
18,938 | 20,263 | 36,507 | |||||||||
Increase in advance ticket sales
|
37,717 | 50,563 | 37,406 | |||||||||
|
||||||||||||
Net cash provided by operating activities
|
153,758 | 136,828 | 147,504 | |||||||||
|
||||||||||||
|
||||||||||||
Cash flows from investing activities
|
||||||||||||
Capital expenditures
|
(748,267 | ) | (658,795 | ) | (809,403 | ) | ||||||
Decrease (increase) in restricted cash
|
2,204 | (19,514 | ) | 45,158 | ||||||||
Cash paid for acquisition of business, net of cash received
|
(4,647 | ) | | | ||||||||
Proceeds received for transfer of tradename to Parent
|
| | 8,000 | |||||||||
|
||||||||||||
Net cash used in investing activities
|
(750,710 | ) | (678,309 | ) | (756,245 | ) | ||||||
|
||||||||||||
|
||||||||||||
Cash flows from financing activities
|
||||||||||||
Principal repayments on long-term debt
|
(505,029 | ) | (280,440 | ) | (809,740 | ) | ||||||
Proceeds from debt
|
1,090,153 | 715,696 | 1,219,557 | |||||||||
Proceeds from Parent
|
32,566 | 1,868 | 4,151 | |||||||||
Contribution from Parent
|
| 461 | 208,000 | |||||||||
Payment of loan arrangement fees
|
(47,455 | ) | (8,112 | ) | (10,113 | ) | ||||||
|
||||||||||||
Net cash provided by financing activities
|
570,235 | 429,473 | 611,855 | |||||||||
|
||||||||||||
Net (decrease) increase in cash and cash equivalents
|
(26,717 | ) | (112,008 | ) | 3,114 | |||||||
Cash and cash equivalents at beginning of period
|
199,141 | 172,424 | 60,416 | |||||||||
|
||||||||||||
Cash and cash equivalents at end of period
|
$ | 172,424 | $ | 60,416 | $ | 63,530 | ||||||
|
||||||||||||
|
||||||||||||
Supplemental disclosures (Note 11)
|
||||||||||||
Interest paid (net of amounts capitalized)
|
$ | 29,633 | $ | 88,811 | $ | 133,958 | ||||||
|
F-4
Accumulated | ||||||||||||||||||||||||
Additional | Unamortized | other | (Note 3) | |||||||||||||||||||||
Common | paid-in | stock option | comprehensive | Accumulated | ||||||||||||||||||||
stock | capital | expense | loss | deficit | Total | |||||||||||||||||||
Balance, December 31,
2003
|
$ | 12 | $ | 1,129,123 | $ | (768 | ) | | $ | (121,789 | ) | $ | 1,006,578 | |||||||||||
Issuance of stock options
|
| 451 | (178 | ) | | | 273 | |||||||||||||||||
Accretion of stock
option expense
|
| | 167 | | | 167 | ||||||||||||||||||
Contribution from Parent
(Note 6 )
|
| 362,049 | | | | 362,049 | ||||||||||||||||||
Net loss
|
| | | | (18,090 | ) | (18,090 | ) | ||||||||||||||||
|
||||||||||||||||||||||||
Balance, December 31,
2004
|
12 | 1,491,623 | (779 | ) | | (139,879 | ) | 1,350,977 | ||||||||||||||||
Issuance of stock options
|
| 94 | (38 | ) | | | 56 | |||||||||||||||||
Accretion of stock
option expense
|
| | 224 | | | 224 | ||||||||||||||||||
Adjustments to variable
stock options
|
| 64 | | | | 64 | ||||||||||||||||||
Contribution from Parent
(Note 6)
|
| 10,148 | | | | 10,148 | ||||||||||||||||||
Net income
|
| | | | 16,235 | 16,235 | ||||||||||||||||||
|
||||||||||||||||||||||||
Balance, December 31,
2005
|
12 | 1,501,929 | (593 | ) | | (123,644 | ) | 1,377,704 | ||||||||||||||||
Non-cash stock-based
compensation
|
| 1,559 | | | | 1,559 | ||||||||||||||||||
Reclassification of
unamortized stock option
expense
|
| (593 | ) | 593 | | | | |||||||||||||||||
Contribution from Parent
(Note 6)
|
| 208,219 | | | | 208,219 | ||||||||||||||||||
Changes related to cash
flow derivative hedges
|
| | | (1,516 | ) | | (1,516 | ) | ||||||||||||||||
Net loss
|
| | | | (130,899 | ) | (130,899 | ) | ||||||||||||||||
|
||||||||||||||||||||||||
Balance, December 31,
2006
|
$ | 12 | $ | 1,711,114 | $ | | $ | (1,516 | ) | $(254,543 | ) | $ | 1,455,067 | |||||||||||
|
Years Ended December 31, | ||||||||||||
2004 | 2005 | 2006 | ||||||||||
Net (loss) income
|
$ | (18,090 | ) | $ | 16,235 | $ | (130,899 | ) | ||||
Changes related to cash flow derivative hedges
|
| | (1,516 | ) | ||||||||
|
||||||||||||
Total comprehensive (loss) income
|
$ | (18,090 | ) | $ | 16,235 | $ | (132,415 | ) | ||||
|
Changes related to cash flow derivative hedges | ||||||||||||
Accumulated other comprehensive income at beginning of year
|
$ | | $ | | $ | | ||||||
Current-period change
|
| | (1,516 | ) | ||||||||
|
||||||||||||
Accumulated other comprehensive loss at end of year
|
$ | | $ | | $ | (1,516 | ) | |||||
|
F-5
1. | Description of Business and Organization | |
On December 15, 2003, we were incorporated in Bermuda as a wholly-owned subsidiary of Star Cruises Limited (the Parent). In connection with our formation, Star Cruises Limited transferred the stock it held in Arrasas Limited (Arrasas) to us. This transaction has been accounted for at historical cost since we and Arrasas are under the common control of Star Cruises Limited. The accompanying consolidated financial statements have been prepared as if we were in existence on January 1, 2003. Accordingly, the consolidated statements of changes in shareholders equity has been adjusted to reflect this capital structure for all periods presented. | ||
We operate three cruise brands, Norwegian Cruise Line, NCL America, and Orient Lines. As of December 31, 2006, we operated 14 ships offering cruises in Antarctica, the Caribbean, the Bahamas, Bermuda, Alaska, Mexico, Europe, Hawaii, New England, North Africa and Central and South America and Scandinavia. | ||
2. | Summary of Significant Accounting Policies | |
The following accounting policies have been used consistently in the preparation of the consolidated financial statements: | ||
Basis of Presentation | ||
The consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America. Estimates are required for the preparation of consolidated financial statements in accordance with generally accepted accounting principles. Actual results could differ from those estimates. All significant intercompany accounts and transactions are eliminated in consolidation. | ||
Revenue and Expense Recognition | ||
Deposits received from customers for future voyages are recorded as advance ticket sales until such passenger revenue is earned. Revenues are recognized when the relevant services have been rendered. Passenger ticket revenues and all associated direct costs of a voyage are recognized on a pro rata basis over the period of the voyage. | ||
Cash and Cash Equivalents | ||
Cash and cash equivalents include cash and investments with original maturities of three months or less when purchased. | ||
Restricted Cash | ||
Restricted cash consists of cash collateral in respect of certain agreements, including requirements imposed by our credit card processor (we refer you to Note 10(f)). Restricted cash fluctuates based on the level of advance ticket sales processed. In May 2006, cash collateral requirements imposed by our credit card processors were lifted. These requirements can be reinstated at the credit card processors discretion. |
F-6
Accounts Receivable | ||
Accounts receivable are shown net of an allowance of $2.0 million and $2.5 million at December 31, 2005 and 2006, respectively. | ||
Foreign Currency | ||
The majority of our transactions are settled in U.S. dollars. Gains or losses resulting from transactions denominated in other currencies are recognized in the consolidated statements of operations at each balance sheet date. | ||
Property and Equipment | ||
Property and equipment are recorded at cost. Major renewals and improvements are capitalized while the cost of repairs and maintenance, including dry-docking costs, are charged to expense as incurred. Gains or losses on the sale of property and equipment are recorded as a component of operating income in the consolidated statements of operations. | ||
Depreciation is computed on the straight-line basis over the estimated useful lives of the assets and after a 15% reduction for the estimated salvage values of ships as follows: |
Useful Life | ||||
Cruise ships
|
30 years | |||
Other property and equipment
|
3-20 years |
Leasehold improvements are amortized on a straight-line basis over the shorter of lease term or related asset life. | ||
Long-lived assets are reviewed for impairments, based on estimated future cash flows, whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Assets are grouped and evaluated at the lowest level for which there are identifiable cash flows that are largely independent of the cash flows of other groups of assets. We consider historical performance and future estimated results in our evaluation of potential impairment and then compare the carrying amount of the asset to the estimated future cash flows expected to result from the use of the asset. If the carrying amount of the asset exceeds estimated expected undiscounted future cash flows, we measure the amount of the impairment by comparing the carrying amount of the asset to its fair value. We estimate fair value based on the best information available making whatever estimates, judgments and projections are considered necessary. The estimation of fair value is generally measured by discounting expected future cash flows at discount rates commensurate with the risk involved. | ||
Goodwill and Tradenames | ||
Goodwill represents the excess of cost over the fair value of net assets acquired. We review goodwill and tradenames for impairment annually or whenever events or changes in circumstances indicate that the carrying amount of goodwill and tradenames may not be fully recoverable. | ||
We have concluded that our business has a single reportable and operating segment, with each ship considered to be a component. Each component constitutes a business for which discrete financial information is available and management regularly reviews the operating results and, therefore, each component is considered a reporting unit. Our reporting units have similar economic |
F-7
characteristics, including similar margins and similar products and services, therefore, we aggregate all of the reporting units in assessing goodwill. | ||
The impairment review of goodwill is based on the expected future cash flows of the ships. The impairment review considers fair value estimated by our guideline method which utilizes market values of companies with similar operations and the transaction approach whereby we estimate fair value based on a recent sale transaction of a similar company. | ||
In 2006, we transferred the Orient Lines tradename to Star Cruises Limited for $16.0 million and recognized an impairment loss of $8.0 million. The proceeds received from the transfer in excess of the net book value of the Orient Lines tradename have been recorded as a capital contribution from Parent in our consolidated statement of changes in shareholders equity for the year ended December 31, 2006. | ||
Consumable Inventories | ||
Consumable inventories mainly consist of provisions and supplies and are carried at the lower of cost determined on a weighted-average basis or net realizable value. | ||
Advertising Costs | ||
Advertising costs incurred that result in tangible assets, including brochures, are treated as prepaid supplies and charged to expense as consumed. Television production costs are recorded as prepaid expenses and expensed when the television advertisement is initially run. Advertising costs of approximately $6.9 million and $3.8 million as of December 31, 2005 and 2006, respectively, are included in prepaid expenses and other. Advertising costs totaled $75.2 million, $79.1 and $76.8 million for the years ended December 31, 2004, 2005 and 2006, respectively. | ||
Dry-docking Expenses | ||
During the second quarter of 2006, we elected to change our method of accounting for dry-docking costs from the deferral method, under which costs associated with dry-docking a ship are deferred and charged to expense over the period to a ships next scheduled dry-docking, to the direct expense method, under which we expense all dry-docking costs as incurred. Accordingly, we have adjusted our previously reported financial information for all periods presented for this change in the method of accounting for dry-docking costs. As a result of the change in the method of accounting for dry-docking costs to the direct expense method, we have classified such costs as other operating expenses in our consolidated statements of operations consistent with our method of expensing repairs and maintenance costs. We refer you to Note 3. C hange in Accounting for Dry-docking Costs. | ||
Income Taxes | ||
Deferred tax assets and liabilities are calculated in accordance with the liability method. Deferred taxes are recorded using the currently enacted tax rates that apply in the periods differences are expected to reverse. Deferred taxes are not discounted. In conjunction with business acquisitions, we record acquired deferred tax assets and liabilities. | ||
We provide a valuation allowance on deferred tax assets when it is more likely than not that such assets will not be realized. With respect to acquired deferred tax assets, future reversals of the |
F-8
valuation allowance will first be applied against goodwill and other intangibles before recognition of a benefit in the consolidated statements of operations. | ||
Share-Based Compensation | ||
Effective January 1, 2006, we adopted the provisions of Statement of Financial Accounting Standards (SFAS) No. 123 (revised 2004), Share-Based Payment (SFAS 123R). SFAS 123R requires the measurement and recognition of compensation expense at fair value for all share-based awards over their vesting period. Prior to January 1, 2006, we accounted for share-based compensation plans in accordance with the provisions of APB Opinion No. 25, Accounting for Stock Issued to Employees (APB 25), and disclosed pro forma information as if we had applied the fair value recognition provisions of SFAS No. 123, Accounting for Stock-Based Compensation (SFAS 123). | ||
We have adopted SFAS 123R under the modified prospective application transition method. Under this method, the share-based compensation expense recognized beginning January 1, 2006 includes compensation cost for all employee share-based awards granted prior to, but not vested as of December 31, 2005, based on the grant date fair value originally estimated in accordance with the provisions of SFAS 123 over their remaining vesting period. Compensation expense associated with awards granted subsequent to January 1, 2006 will be based on the grant date fair value estimated in accordance with the provisions of SFAS 123R. In addition, SFAS 123R requires us to estimate the amount of expected forfeitures when calculating the compensation expense, instead of accounting for forfeitures as they occurred, which was our previous method. Prior period results are not restated under the modified prospective application method. As of January 1, 2006, the cumulative effect of adopting the expected forfeiture method was not significant. | ||
The following table illustrates the effect on net (loss) income for the years ended December 31, 2004 and 2005 if we had applied the fair value recognition provisions of SFAS 123 to share-based employee compensation (in thousands of dollars): |
2004 | 2005 | |||||||
Net (loss) income
|
$ | (18,090 | ) | $ | 16,235 | |||
Add:
|
||||||||
Total share-based employee compensation expense included in net (loss) income
|
440 | 343 | ||||||
Deduct:
|
||||||||
Total share-based employee compensation expense determined under fair value
method for all awards
|
(2,373 | ) | (3,524 | ) | ||||
|
||||||||
Pro forma net (loss) income
|
$ | (20,023 | ) | $ | 13,054 | |||
|
Stock Option Plans | ||
On December 28, 2006, Star Cruises Limited completed the issuance of 1,484,084,467 rights shares. As a result of the rights issue, the exercise price and the number of ordinary shares issuable upon exercise in full of the outstanding share options were adjusted accordingly. At such time, 499 employees received 3,073,108 incremental shares due to the rights offering. This rights offering has been accounted for as a modification under SFAS 123R and has resulted in an incremental expense of $0.3 million as of the modification date, December 28, 2006. The extended binomial options pricing model was used to estimate the incremental fair value, (i.e., the |
F-9
difference between the fair value of the modified share options and that of the original share options). | ||
Total compensation expense recognized under SFAS 123R for options issued under the Pre-Listing Employee Share Option Scheme and the Post-Listing Share Option Scheme was $1.6 million for the year ended December 31, 2006, of which approximately $0.8 million has been included within marketing, general and administrative expenses and approximately $0.8 million in payroll and related expenses in our consolidated statements of operations. This amount includes the $0.3 million for the incremental expense due to the modification discussed above. | ||
In January 2000, Star Cruises Limited granted a stock option to an executive to purchase 200,000 shares of Star Cruises Limiteds common stock at $2.275 per share under Star Cruises Limiteds Pre-Listing Employee Share Option Scheme. The option vests over a period through 2009. The number of shares of common stock subject to the stock option was adjusted for the rights offerings. At December 31, 2006, the executive had a stock option to purchase 648,963 shares of Star Cruises Limiteds common stock at a price of $0.40 per share. No further options can be granted under the Pre-Listing Employee Share Option Scheme. | ||
In November 2000, Star Cruises Limited adopted a Post-Listing Employee Share Option Scheme for the employees of Star Cruises Limited and our employees that provides for the granting of stock options in Star Cruises Limiteds common stock. The maximum number of stock options available for issue under the Post-Listing Employee Share Option Scheme and options granted under any other schemes of Star Cruises Limited is 132,733,953. The stock options are exercisable over a ten-year period from the date the stock options are awarded. Fifty percent of the total stock options granted vests as follows: 30% two years from the award date, 20% three years from the award date and an additional 10% annually in the subsequent years until the options are fully vested. The other 50% of the total stock options granted vests pursuant to the same schedule assuming that we achieve certain performance targets, as defined in the Post-Listing Employee Share Option Scheme. Pursuant to the terms of the grant award, the employee is required to sign and return documentation of acceptance of the stock option award along with $1.00 consideration. Generally, options issued under the Post-Listing Employee Share Option Scheme are granted at a price not less than the fair value of the shares on the date of grant. | ||
In August 2004, Star Cruises Limited authorized the additional grant of approximately 7,974,000 share options to our management under the Post-Listing Employee Share Option Scheme. The terms and conditions of this grant are consistent with the previous options granted under the Post-Listing Employee Share Option Scheme with the exception that the options vest two years from the award date. | ||
The Post-Listing Employee Share Option Scheme provides that a former employee must pay in cash to us liquidated damages, as defined, in the Post-Listing Share Option Scheme, if the employee leaves us and engages in any trade, employment, business or activity for six months after leaving us that would be considered in competition with the work done for us. The liquidated damages are equivalent to a percentage of the capital appreciation of the stock option, defined as the difference between the market price of the stock on the date of the exercise of the stock option and the exercise price of the stock option, less the amount of any income taxes paid. | ||
The weighted-average fair value of options granted to employees during each of the years ended December 31, 2004 and 2005 was $0.16. The weighted-average fair value of options granted to employees as of the modification date, December 28, 2006, was $0.11. The fair value of options |
F-10
on the grant and modification dates was estimated using an extended binomial options pricing model with the following assumptions: |
Years Ended December 31, | ||||||||||||
2004 | 2005 | 2006 | ||||||||||
Dividend yield
|
| | | |||||||||
Expected stock price volatility
|
40.2 | % | 40.2 | % | 49.9 | % | ||||||
Risk-free interest rate
|
3.4 | % | 3.4 | % | 3.7 | % | ||||||
Expected option life
|
10 years | 10 years | 10 years |
Expected volatility was based on historical volatility. The risk-free interest rate was based on the Hong Kong government bond rate with a remaining term equal to the expected option life assumed at the date of grant. The expected option life was calculated based on the contractual term of the option, historical exercise experience and the underlying terms of the respective options. | ||
Upon adoption of SFAS 123R, $0.6 million in unamortized stock option expense related to awards that had been subject to variable accounting under APB 25 was eliminated against additional paid-in capital for the year ended December 31, 2006. | ||
Segment Reporting | ||
We operate under three brand names, Norwegian Cruise Line, NCL America, and Orient Lines. The brands have been aggregated as a single operating segment based on the similarity of their economic characteristics, as well as products and services provided. | ||
Although we sell cruises on an international basis, our passenger ticket revenue is primarily attributed to passengers who made reservations in North America. For the years ended December 31, 2004, 2005 and 2006, revenues attributable to North American passengers were approximately 89%, 90% and 87%, respectively. | ||
Financial Instruments | ||
From time to time, we enter into derivative instruments, primarily forward contracts, swaps and options, to reduce our exposure to fluctuations in foreign currency exchange, interest and fuel rates. The criteria used to determine whether a transaction qualifies for hedge accounting include correlation between fluctuations in the fair value of the hedged item and the fair value of the related derivative instrument and the effectiveness of the hedge. To the extent that an instrument is not effective as a hedge, gains and losses are recognized in the consolidated statements of operations as a gain or loss in other expenses (income), net (we refer you to Note 7). | ||
Recent Accounting Pronouncements | ||
In June 2006, the Financial Accounting Standards Board (FASB) issued FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes an interpretation of FASB Statement 109 (FIN 48). FIN 48 prescribes a comprehensive model for recognizing, measuring, presenting and disclosing in the financial statements tax positions taken or expected to be taken on a tax return. The provisions of FIN 48 are effective beginning January 1, 2007 with the cumulative effect of the change in accounting principle recorded as an adjustment to the opening balance of accumulated |
F-11
deficit. We do not expect that the adoption of FIN 48 will have a material impact on our consolidated financial position and results of operations. | ||
In June 2006, the Emerging Issues Task Force (EITF) ratified a consensus on EITF Issue No. 06-3, How Taxes Collected from Customers and Remitted to Governmental Authorities Should Be Presented in the Income Statement (that is, Gross versus Net Presentation). Taxes within the scope of EITF Issue No. 06-3 include any taxes assessed by a governmental authority that are directly imposed on a revenue-producing transaction between a seller and a customer and may include, but are not limited to, sales taxes, use taxes, value-added taxes, and some excise taxes. We have adopted EITF Issue No. 06-3 as our policy is to present these taxes on a gross basis. The amounts included on a gross basis are $53.8 million, $68.7 million and $83.3 million for the years ended December 31, 2004, 2005 and 2006, respectively. | ||
In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements (SFAS No. 157). SFAS No. 157 defines fair value, establishes a framework for measuring fair value, and expands disclosures about fair value measurements. SFAS No. 157 is effective for financial statements issued for our fiscal year beginning in 2008 and interim periods within that year. We are currently assessing the impact of SFAS No. 157 on our consolidated financial position and results of operations. | ||
In September 2006, the FASB issued SFAS No. 158, Employers Accounting for Defined Benefit Pension and Other Postretirement Plans, an amendment of FASB Statements No. 87, 88, 106, 132(R) (SFAS No. 158). SFAS No. 158 requires employers to fully recognize in their financial statements the obligations associated with single-employer defined benefit pension plans, retiree healthcare plans, and other postretirement plans. Specifically, it requires a company to recognize on its balance sheet an asset for a plans overfunded status or a liability for a plans underfunded status, measure a plans assets and its obligations that determine its funded status as of the end of the employers fiscal year and recognize changes in the funded status of a plan through comprehensive income in the year in which the changes occur. SFAS No. 158 is effective for financial statements issued as of December 31, 2006 and is to be applied prospectively. The adoption of SFAS No. 158 did not have an impact on our consolidated financial statements as our plans are not within the scope of SFAS No. 158. | ||
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and Financial LiabilitiesIncluding an amendment of FASB Statement No. 115 (SFAS No. 159). It permits all entities to choose to elect, at specified election dates, to measure eligible financial instruments at fair value. An entity shall report unrealized gains and losses on items for which the fair value option has been elected in earnings at each subsequent reporting date, and recognize upfront costs and fees related to those items in earnings as incurred and not deferred. SFAS No. 159 applies to fiscal years beginning after November 15, 2007, with early adoption permitted for an entity that has also elected to apply the provisions of SFAS No. 157. An entity is prohibited from retrospectively applying SFAS No. 159, unless it chooses early adoption. We are currently assessing the impact of SFAS No. 159 on our consolidated financial position and results of operations. | ||
Reclassifications | ||
Certain prior year balances have been reclassified to conform to the current years presentation. |
F-12
Year ended | Year ended | |||||||||||||||||||||||
December 31, 2004 | December 31, 2005 | |||||||||||||||||||||||
Deferral | Direct | Effect | Deferral | Direct | Effect | |||||||||||||||||||
Method | Method | of Change | Method | Method | of Change | |||||||||||||||||||
Other operating expenses (a)
|
$ | 184,188 | $ | 204,030 | $ | 19,842 | $ | 190,442 | $ | 211,929 | $ | 21,487 | ||||||||||||
Depreciation and amortization
expenses (a)
|
87,397 | 76,937 | (10,460 | ) | 104,181 | 85,615 | (18,566 | ) | ||||||||||||||||
Net (loss) income
|
(8,708 | ) | (18,090 | ) | (9,382 | ) | 19,156 | 16,235 | (2,921 | ) |
Year ended | ||||||||||||
December 31, 2006 | ||||||||||||
Deferral | Direct | Effect | ||||||||||
Method (b) | Method | of Change | ||||||||||
Other
operating
expenses(a)
|
$ | 230,364 | $ | 249,471 | $ | 19,107 | ||||||
Depreciation and
amortization expenses(a)
|
140,726 | 119,097 | (21,629 | ) | ||||||||
Net loss
|
(133,421 | ) | (130,899 | ) | 2,522 |
F-13
December 31, 2005 | December 31, 2006 | |||||||||||||||||||||||
Deferral | Direct | Effect | Deferral | Direct | Effect | |||||||||||||||||||
Method | Method | of Change | Method (b) | Method | of Change | |||||||||||||||||||
Deferred dry-docking costs current
|
$ | 14,591 | $ | | $ | (14,591 | ) | $ | 15,820 | $ | | $ | (15,820 | ) | ||||||||||
Deferred
dry-docking costs
non-current
|
9,273 | | (9,273 | ) | 7,110 | | (7,110 | ) | ||||||||||||||||
Accrued expenses
and other
liabilities
|
142,839 | 144,427 | (1,588 | ) | | | | |||||||||||||||||
Accumulated deficit
|
(98,192 | ) | (123,644 | ) | (25,452 | ) | (231,613 | ) | (254,543 | ) | (22,930 | ) |
(a) | As a result of the change in the method of accounting for dry-docking costs to the direct expense method, we have classified such costs as other operating expenses in our consolidated statements of operations consistent with our method of expensing repairs and maintenance costs. | |
(b) | The amounts disclosed under the deferral method as of and for the year ended December 31, 2006 are based on the estimated effect of not changing our method of accounting for dry-docking costs to the direct expense method for this current period. Accordingly, these estimated current period amounts have not been previously reported, but are being disclosed in accordance with the requirements of SFAS No. 154. | |
In addition, our accumulated deficit increased by $13.2 million at December 31, 2003 from $108.6 million to $121.8 million, as a result of this change in the method of accounting for dry-docking costs. | ||
4. | Property and Equipment | |
Property and equipment at December 31, 2005 and 2006 consists of the following (in thousands of dollars): |
2005 | 2006 | |||||||
Cruise ships
|
$ | 2,849,784 | $ | 3,876,857 | ||||
Cruise ships under construction
|
461,317 | 223,945 | ||||||
Other
property and equipment
|
84,182 | 115,813 | ||||||
|
||||||||
|
3,395,283 | 4,216,615 | ||||||
Less: accumulated depreciation.
|
(282,054 | ) | (400,323 | ) | ||||
|
||||||||
Total
|
$ | 3,113,229 | $ | 3,816,292 | ||||
|
Depreciation expense for the years ended December 31, 2004, 2005 and 2006 was $76.9 million, $85.6 million and $119.1 million, respectively. | ||
Ships under construction include progress payments for the construction of new ships as well as planning, design, interest, commitment fees and other associated costs. |
F-14
Interest costs associated with the construction of the cruise ships are capitalized during the construction period and amounted to $17.4 million, $32.2 million and $21.9 million for the years ended December 31, 2004, 2005 and 2006, respectively. | ||
In September 2006, we entered into a 29.0 million Euro or $36.8 million, based on the Euro/U.S. dollar exchange rate at September 30, 2006, settlement agreement in connection with our pre- and post-ship delivery claims against the builder of Pride of America . Settlement amounts of $7.3 million related to our claims for post-delivery costs incurred by us have been included as other income in our consolidated statements of operations. | ||
5. | Long-Term Debt | |
Long-term debt as of December 31, 2005 and 2006 consists of the following (in thousands of dollars): |
2005 | 2006 | |||||||
$300.0 million Senior Secured Term Loan, LIBOR + applicable margin (1.50%
at December 31, 2005 and 2006), due through 2010
|
$ | 265,000 | $ | 230,000 | ||||
$500.0 million Senior Secured Revolving Credit Facility, LIBOR + applicable
margin (1.50% at December 31, 2005 and 2006), due 2010
|
280,000 | 280,000 | ||||||
$610.0 million Senior Secured Revolving Credit Facility, LIBOR + applicable
margin (1.50% at December 31, 2006), due through 2013
|
| 390,000 | ||||||
Euro 624.0 million
Norwegian Pearl
and
Norwegian Gem
Revolving Credit
Facility, EURIBOR + applicable margin (1.2375% at December 31, 2006), due
through 2018
|
| 410,753 | ||||||
$250.0 million 10 5/8% Senior Notes due through 2014
|
250,000 | 250,000 | ||||||
$626.9 million Syndicated Term Loan, LIBOR + 1.40% , due through 2014
|
250,769 | | ||||||
$225.0 million
Norwegian Sun
Loan, LIBOR + 1.40% , due through 2011
|
189,000 | | ||||||
Euro 258.0 million
Pride of America
Hermes Loan, 5.715%, due through 2017
|
292,219 | 266,808 | ||||||
Euro 40.0 million
Pride of America
Commercial Loan, 6.595%, due through 2017
|
44,419 | 40,557 | ||||||
$334.1 million
Norwegian Jewel
Loan, 6.1075%, due through 2017
|
324,261 | 297,239 | ||||||
Euro
308.1 million
Pride of Hawaii
Loan, EURIBOR + 0.75%, due through 2018
|
200,120 | 378,209 | ||||||
Other long-term debt
|
10,889 | 16,429 | ||||||
|
||||||||
|
2,106,677 | 2,559,995 | ||||||
Less: Current portion
|
(140,694 | ) | (154,638 | ) | ||||
|
||||||||
|
$ | 1,965,983 | $ | 2,405,357 | ||||
|
In October 2005, we entered into a revolving credit facility agreement for up to Euro 624.0 million. The facility can only be drawn for the payments due under Norwegian Pearl and Norwegian Gem shipbuilding contracts. We drew Euro 311.2 million ($410.8 million based on the Euro/U.S. dollar exchange rate at drawdown) for delivery of Norwegian Pearl . After the initial drawdown, the facility converted to a revolving credit facility and can be used for general corporate and working capital purposes. The size of the facility decreases over the life of the loan. The facility matures 12 years following delivery of the relevant ship. The facility bears interest at a rate that varies according to LIBOR or EURIBOR, depending on the denomination of the underlying balance. |
F-15
In December 2005, the Euro 258.0 million Pride of America Hermes Loan was converted into U.S. dollars, and the applicable interest rate was converted from a floating LIBOR-based rate to a fixed rate of 5.715%. | ||
In March 2006, we amended the Euro 40.0 million Pride of America Commercial Loan, converting it from a floating-rate loan bearing interest at a rate based on LIBOR plus a margin of 135 basis points to a fixed-rate loan bearing interest at a rate of 6.595%. | ||
In April 2006, we amended the $334.1 million Norwegian Jewel Loan, converting it from a floating-rate loan bearing interest at a rate based on LIBOR plus a margin of 75 basis points to a fixed-rate loan bearing interest at a rate of 6.1075%. | ||
In April 2006, we took delivery of Pride of Hawaii . The balance due to the shipbuilding yard was paid on delivery from a drawdown of Euro 130.0 million ($157.4 million based on the Euro/U.S. dollar exchange rate at drawdown) under the Euro 308.1 million Pride of Hawaii Loan. At December 31, 2006, Euro 286.5 million ($378.2 million based on the Euro/U.S, dollar exchange rate) was outstanding. | ||
In September 2006, we obtained export credit financing for 80% of the contract amount of each of the two F3 ships scheduled for delivery in 2009 and 2010. These financings cannot exceed approximately $0.9 billion each, based on the Euro/U.S. dollar exchange rate at December 31, 2006. These financings are term loans each collateralized by the respective ship and are due 12 years from delivery date, through 2021 and 2022, respectively. The financing for the first ship is denominated in U.S. dollars bearing a fixed interest rate of 6.05% and the financing for the second ship is denominated in Euro bearing a fixed interest rate of 4.89%. Under the terms of each loan agreement, we have the ability to cancel the financing up to 60 days prior to the delivery date for the ship. | ||
In December 2006, we entered into a $610.0 million senior secured revolving credit facility. The facility refinanced two existing loans collateralized by Norwegian Dawn and Norwegian Sun and provides additional borrowing capacity for general corporate purposes. The facility is available in two tranches of $510.0 million and $100.0 million. According to the terms of this facility, the availability under the facility will increase by $100.0 million to the full $610.0 million in the event we receive an additional $200.0 million of equity , which we have not received as of February 23, 2007. The facility has no amortization for the first 36 months, bears interest at LIBOR plus a margin of 150 basis points at December 31, 2006 (subject to certain adjustments) and matures in 2013. | ||
At December 31, 2005 and 2006, we had long-term debt denominated in Euro with a balance of $200.1 million and $789.0 million, respectively. As a result of the translation of these borrowings, we recognized a foreign currency translation loss of $9.5 million, gain of $29.4 million and a loss of $35.1 million for the years ended December 31, 2004, 2005 and 2006, respectively. These amounts were recorded as a component of other expenses (income), net, in the consolidated statements of operations. | ||
Our availability under our $500.0 million and $610.0 million senior secured revolving credit facilities at December 31, 2006, was $220.0 million and $120.0 million, respectively. | ||
There are no restrictions in the agreements that limit intercompany borrowings or dividends between our subsidiaries that would impact our ability to meet our cash obligations. |
F-16
Costs incurred in connection with the arranging of loan financing have been deferred and are amortized over the life of the loan agreement. The amortization included in interest expense for the years ended December 31, 2004, 2005 and 2006 was $3.9 million, $3.9 million and $5.5 million, respectively. | ||
Our debt agreements contain covenants that require us, among other things, to maintain a minimum level of free liquidity, limit our net funded debt-to-capital ratio, and restrict our ability to pay dividends. We were in compliance with all covenants as of December 31, 2005 and 2006. In November 2006, our lenders agreed to modify our debt agreements by increasing our maximum permitted total net funded debt-to-capital ratio from 65% to 70%. Our ships and substantially all other property are pledged as collateral for our debt. | ||
The following is a schedule of principal repayments of the long-term debt based on the Euro/U.S. dollar exchange rate at December 31, 2006 (in thousands of dollars): |
2007
|
$ | 154,638 | ||
2008
|
154,309 | |||
2009
|
179,313 | |||
2010
|
575,058 | |||
2011
|
169,560 |
We had an accrued interest liability of $29.8 million and $35.1 million at December 31, 2005 and 2006, respectively. | ||
6. | Related Party Disclosures | |
In April 2004, Star Cruises Limited completed a reorganization transaction (the Reorganization) which included the formation of NCL Corporation Ltd. (we refer you to Note 1). In connection with the Reorganization, we transferred six ships at their existing net book values of approximately $778.0 million along with approximately $403.2 million of existing debt associated with these ships. The difference of approximately $374.8 million between the net book value of the ships and the outstanding debt balance was recorded as a reduction of our amount due to Parent on the date of the transaction. In addition, Star Cruises Limited agreed to forgive an additional $366.6 million owed by us to Star Cruises Limited at December 31, 2003. This forgiveness was recorded as additional paid-in capital during the year ended December 31, 2004. | ||
In connection with the Reorganization, substantially all of the guarantees and mortgages that had been provided by our subsidiaries to the lenders of Star Cruises Limited were released and substantially all of the guarantees provided by Star Cruises Limited to our lenders were released. Our lenders were provided guarantees by us in lieu of the previous guarantees provided by Star Cruises Limited. | ||
After the transfer of the six ships to Star Cruises Limited, we entered into charter agreements for the six ships with Star Cruises Limited for periods ranging from one to six years. During such charter periods, we will continue to operate and maintain such ships. We are required to return the ships at the end of the term of the charter agreements in the same condition as when the ships were delivered to us at the commencement of the charter term. | ||
In April 2004, we transferred Norway , and a related $19.7 million insurance receivable to Star Cruises Limited in exchange for a non-interest bearing promissory note in the amount of $46.5 million. The promissory note or a portion of the outstanding balance thereof is payable to us by |
F-17
Star Cruises Limited at the time of disposal of the ship and the recovery of certain amounts from the insurance syndicate who insured the ship in May 2003 at the time there was an incident onboard. The face value of the promissory note represented our carrying value of Norway on April 23, 2004, which estimated the anticipated proceeds from the sale of the ship, and the estimated amount to be recovered from the insurance syndicate. | ||
In October 2004, we received insurance proceeds of $19.7 million that reduced the outstanding balance of the promissory note to $26.8 million. Subsequently, management determined the probability of finding a qualified third party buyer was not likely and accordingly, in the fourth quarter of 2004, we recorded an impairment charge in the amount of $14.5 million to reduce the carrying value of the promissory note to the ships estimated salvage value, approximately $12.3 million, at December 31, 2004. The promissory note, which was settled in January 2006, is classified as a current asset in the accompanying consolidated balance sheets at December 31, 2005. | ||
In July 2004, we purchased Norwegian Spirit from Star Cruises Limited for $307.6 million. Approximately $4.7 million of the amount originally transferred was accounted for as a reduction of additional paid-in capital for the year ended December 31, 2004. Such amount represented the excess of the amount paid by us to Star Cruises Limited in connection with the purchase of Norwegian Spirit over the net book value of the ship on the books of Star Cruises Limited at the time of the transaction. | ||
Amounts due to Star Cruises Limited at December 31, 2005 of $3.1 million and amounts due from Star Cruises Limited at December 31, 2006 of $5.0 million are non-interest bearing and represent short-term intercompany transactions. | ||
In 2006, we transferred the Orient Lines tradename to Star Cruises Limited for $16.0 million and recognized an impairment loss of $8.0 million. The proceeds received from the transfer in excess of the net book value of the Orient Lines tradename have been recorded as a capital contribution from Parent in our consolidated statement of changes in shareholders equity for the year ended December 31, 2006. During 2006, we received $208.0 million in capital contributions from Star Cruises Limited including the amounts related to the Orient Lines tradename. | ||
In addition, for the years ended December 31, 2004, 2005 and 2006, we recorded legal and other costs in the amounts of $0.2 million, $10.1 million and $0.2 million, respectively, all of which was reimbursed to us by Star Cruises Limited. Such amounts were recorded as capital contributions in the respective years. | ||
At December 31, 2006, the Lim Family directly and indirectly controls approximately 73% of Star Cruises Limited, which in turn owns 100% of our equity. As a result of the ownership, the Lim Family has the ability to determine our corporate policies, appoint our directors and officers and control those corporate actions that require shareholder approval. | ||
7. | Financial Instruments | |
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 the balance sheet date or that will be realized in the future and do not include expenses that could be incurred in an actual sale or settlement. Our financial instruments are not held for trading or speculative purposes. | ||
Our exposure under foreign currency contracts, interest rate and fuel hedging agreements is limited to the cost of replacing the contracts in the event of non-performance by the counterparties to the |
F-18
contracts. To minimize this risk, we select counterparties with credit risks acceptable to us. Furthermore, foreign currency forward contracts are denominated in primary currencies. | ||
The following are the fair values and methods used to estimate the fair values of our financial instruments: | ||
Cash and Cash Equivalents | ||
The carrying amounts of cash and cash equivalents approximate their fair values due to the short term maturity of these instruments. | ||
Long-Term Debt | ||
As of December 31, 2005 and 2006, the fair value of our long-term debt, including the current portion, was $2,128.5 million and $2,579.2 million, respectively, which was $21.8 million more and $19.2 million more, respectively, than the carrying values. The difference between the fair value and carrying value of our long-term debt is due to our variable rate debt obligations carrying interest rates that are above or below market rates at the measurement dates. The fair value of our long-term debt is estimated based on rates currently available to us for the same or similar terms and remaining maturities. | ||
Market risk associated with our long-term fixed rate debt is the potential increase in fair value resulting from a decrease in interest rates. Market risk associated with our long-term floating rate debt is the potential increase in interest expense from an increase in interest rates. | ||
Fuel Swap Agreements | ||
The fair values of our fuel swap agreements were estimated based on quoted market prices for similar or identical financial instruments to those we hold. Our exposure to market risk for changes in fuel prices relates to the forecasted consumption of fuel on our ships. We use fuel swap agreements to mitigate the impact of fluctuations in fuel prices. As of December 31, 2005, we had fuel swap agreements to pay fixed prices for fuel with an aggregate notional amount of $12.5 million and an unrealized favorable fair value of $0.6 million which matured through June 2006. As of December 31, 2006, we had fuel swap agreements to pay fixed prices for fuel with an aggregate notional amount of $18.9 million and an unrealized unfavorable fair value of $1.6 million maturing through June 2007. | ||
8. | Employee Benefits and Stock Option Plans | |
Employee Stock Option Plans | ||
In November 2000, Star Cruises Limited adopted a Post-listing Employee Share Option Scheme (Share Option Scheme) for the employees of Star Cruises Limited and our employees that provides for the granting of stock options in Star Cruises Limiteds common stock. The stock options are exercisable over a ten year period from the date the stock options are awarded. Fifty percent of the total stock options granted vests as follows: 30% two years from the award date, 20% three years from the award date and an additional 10% annually in the subsequent years until the options are fully vested. The other 50% of the total stock options granted vests pursuant to the same schedule assuming that we achieve certain performance targets, as defined in the Share Option Scheme. Pursuant to the terms of the grant award, the employee is required to sign and return documentation of acceptance of the stock option award along with U.S. $1.00 consideration. |
F-19
In August 2004, Star Cruises Limited authorized the additional grant of approximately 7,974,000 share options to our management under the Post-Listing Employee Share Option Scheme. The terms and conditions are consistent with the previous options granted under the Post-Listing Employee Share Option Scheme with the exception that the options vest two years from the award date. | ||
On December 28, 2006, Star Cruises Limited completed the issuance of 1,484,084,467 rights shares. As a result of the rights issue, the exercise price and the number of ordinary shares issuable upon exercise in full of the outstanding share options have been adjusted accordingly. At such date, 499 employees received 3,073,108 incremental shares due to the rights offering. This rights offering has been accounted for as a modification under SFAS 123R and has resulted in an incremental expense of $0.3 million as of the modification date, December 28, 2006. The extended binomial options pricing model was used to estimate the incremental fair value, (i.e., the difference between the fair value of the modified share options and that of the original share options). | ||
Subsequent to the rights issue, as of December 31, 2006, outstanding share options granted to NCLs employees (including directors) under the Pre-listing Employee Share Option Scheme and the Post-listing Employee Share Option Scheme totaled 648,963 at an exercise price of $0.40 per share and 50,988,055 with a weighted-average exercise price of $0.34 per share, respectively, including 2,595,853 and 2,530,958 granted to directors and executive officers, respectively. | ||
Pertinent information covering the options granted pursuant to the Share Option Scheme is as follows: |
Weighted | ||||||||||||||||||
Weighted | Average | |||||||||||||||||
Average | Remaining | |||||||||||||||||
Number of | Option | Exercise | Contractual | |||||||||||||||
Shares | Price | Price | Life | Date | ||||||||||||||
Outstanding at December 31, 2005
|
49,045,982 | $ | 0.22-$0.41 | $ | 0.39 | 6.91 | 2012-14 | |||||||||||
Granted
|
| | | | | |||||||||||||
Additional shares due to rights offering
|
3,073,108 | $ | 0.21-$0.36 | $ | 0.34 | 5.92 | 2012-14 | |||||||||||
Forfeited
|
(1,131,035 | ) | $ | 0.21-$0.36 | $ | 0.35 | 5.74 | 2012-14 | ||||||||||
|
||||||||||||||||||
Outstanding at December 31, 2006
|
50,988,055 | $ | 0.21-$0.36 | $ | 0.34 | 5.92 | 2012-14 | |||||||||||
|
||||||||||||||||||
Exercisable at
|
||||||||||||||||||
December 31, 2006
|
32,106,506 | $ | 0.21-$0.36 | $ | 0.33 |
F-20
Significant option groups outstanding at December 31, 2006 and related price and life information is as follows: |
Options Outstanding | Options Exercisable | |||||||||||||||||||
Weighted | ||||||||||||||||||||
Weighted | Average | Exercisable | Weighted | |||||||||||||||||
Outstanding at | Average | Remaining | at | Average | ||||||||||||||||
December 31, | Exercise | Contractual | December 31, | Exercise | ||||||||||||||||
Exercise Price | 2006 | Price | Life | 2006 | Price | |||||||||||||||
$0.36
|
44,311,549 | $ | 0.36 | 5.66 | 25,430,000 | $ | 0.36 | |||||||||||||
$0.21
|
6,676,506 | $ | 0.21 | 7.65 | 6,676,506 | $ | 0.21 | |||||||||||||
|
||||||||||||||||||||
|
50,988,055 | $ | 0.34 | 5.92 | 32,106,506 | $ | 0.33 | |||||||||||||
|
As of December 31, 2006, there was $2.6 million of total unrecognized compensation cost related to unvested stock options. This cost is expected to be recognized over a weighted-average period of 3.3 years. | ||
The Share Option Scheme provides that a former employee must pay in cash to us liquidated damages, as defined, in the Share Option Scheme, if the employee leaves us and engages in any trade, employment, business or activity for six months after leaving us that would be considered in competition with the work done for us. The liquidated damages is equivalent to a percentage of the capital appreciation of the stock option, defined as the difference between the market price of the stock on the date of the exercise of the stock option and the exercise price of the stock option, less the amount of any income taxes paid. | ||
Benefit Plans | ||
We have a frozen defined contribution plan (the Plan) for our shoreside employees. Effective January 1, 2002, the Plan was amended to cease future employer contributions. The Plan is subject to the provisions of the Employment Retirement Income Security Act of 1974 (ERISA). | ||
In addition, we maintain a 401(k) Plan (the 401(k) Plan). The 401(k) Plan covers substantially all our shoreside employees. Participants may contribute up to 100% of eligible compensation each pay period, subject to certain limitations. We make matching contributions equal to 100% of the first 3% and 50% of the next 7% of the participants contributions and such contributions shall not exceed 6.5% of each participants compensation. Our matching contributions are vested according to a five-year schedule. | ||
We maintain an unfunded Supplemental Executive Retirement Plan (SERP Plan), a defined contribution plan, for certain of our key employees whose benefits are limited under the Plan and the 401(k) Plan. We record an expense for amounts due to the SERP Plan on behalf of each participant that would have been contributed without regard to any limitations imposed by the U.S. Internal Revenue Code (the Code). | ||
Our contributions are reduced by contributions forfeited by those employees who leave the schemes prior to vesting fully in the contributions. Approximately $0.11 million, $0.10 million and $0.13 million of the forfeited contributions were utilized in each of the years ended December 31, 2004, 2005 and 2006, respectively. As of December 31, 2005 and 2006, approximately $0.1 million and $0.04 million, respectively, were available to reduce future contributions. | ||
In addition, we maintain an unfunded Supplemental Senior Executive Retirement Plan (SSERP Plan), a defined benefit plan, for selected senior executives. We have recorded an accrual at December 31, 2005 and 2006 of approximately $9.7 million and $8.6 million, respectively, with respect to the SSERP Plan in the accompanying consolidated balance sheets. We record an expense |
F-21
related to the SSERP Plan for such amounts based on the following actuarial assumptions: 5% discount rate and 5% annual increase in compensation. | ||
We recorded expenses related to the above described defined contribution plans and SSERP Plan of approximately $4.5 million, $3.2 million and $1.6 million for the years ended December 31, 2004, 2005 and 2006, respectively. No amounts are required to be or were contributed under the SERP or SSERP Plan by us as of December 31, 2004, 2005 and 2006 as the SERP and SSERP Plans are unfunded. | ||
9. | Income Taxes | |
We are incorporated in Bermuda. Our subsidiary, Arrasas Limited, which is incorporated in the Isle of Man, is not subject to income tax in respect of activities undertaken outside the Isle of Man. | ||
Historically, NCL Holdings ASA (NCLH) and its subsidiaries were subject to tax in Norway. However, during 2001, Arrasas Limited completed a restructuring of NCLH and its subsidiaries. In connection with the restructuring, Norwegian Cruise Line Limited (NCLL), a Bermuda based operating subsidiary, became a directly held subsidiary of Arrasas and accordingly the profits of NCLL are no longer subject to taxation in Norway. NCLH and NCL Cruises Ltd. remain within the Norwegian tax regime and are currently dormant. | ||
Deferred tax assets and liabilities that relate to our Norwegian taxes comprised the following at December 31, 2005 and 2006 (in thousands of dollars): |
2005 | 2006 | |||||||
Deferred tax assets:
|
||||||||
Loss carryforwards
|
$ | 59,510 | $ | 59,560 | ||||
Shares in NCL Cruises Ltd.
|
42,020 | 56,184 | ||||||
Pension obligation
|
544 | 589 | ||||||
Others
|
572 | 458 | ||||||
|
||||||||
|
102,646 | 116,791 | ||||||
Valuation allowance
|
(102,646 | ) | (116,791 | ) | ||||
|
||||||||
Total net deferred taxes
|
$ | | $ | | ||||
|
Due to recently enacted legislation, taxable losses can be carried forward indefinitely. Total losses available for carry forward related to NCLH as of December 31, 2005 and 2006 are $212.5 million and $212.7 million, respectively. | ||
The valuation allowance for deferred tax is in respect of future tax benefits attributable to NCLH and arising prior to its acquisition by us. If these assets are realized, the benefit will be allocated to reduce goodwill arising on the acquisition of NCLH. |
F-22
In addition, we are subject to U.S. federal income taxation with respect to certain income derived from our foreign-flagged operations and the income derived from our U.S. subsidiaries. | ||
Our foreign-flagged operations derive income from the international operation of ships (Shipping Income). Under section 883 of the Code, certain foreign corporations, though engaged in the conduct of a trade or business within the U.S., are exempt from U.S. federal income taxes on (or in respect of) gross income derived from the international operation of ships. We believe that substantially all of our income from the international operation of ships is properly categorized as exempt Shipping Income. | ||
Effective for taxable years beginning after September 24, 2004, the Internal Revenue Service issued final regulations interpreting section 883 of the Code. These final regulations list several items of income which are not considered to be incidental to the international operation of ships and, to the extent derived from U.S. sources, are subject to U.S. federal income taxes. Income items considered non-incidental to the international operation of ships include income from the sale of single-day shore excursions, air and other transportation, and pre- and post-cruise land packages. We recorded an income tax provision of $1.2 million and an income tax benefit of $1.2 million for the years ended December 31, 2005 and 2006, respectively, due to the enactment of the Final Regulations. | ||
Income derived from our U.S. subsidiaries generally is subject to U.S. federal income taxation at graduated rates of up to 35%, after an allowance for deductions. U.S.-source dividends paid by NCL America generally would be subject to a 30% withholding tax. | ||
Deferred tax assets and liabilities that relate to our U.S. subsidiaries comprised the following at December 31, 2005 and 2006 (in thousands of dollars): |
F-23
2005 | 2006 | |||||||
Deferred tax assets:
|
||||||||
Loss carryforwards
|
$ | 82,061 | $ | 154,198 | ||||
Start-up expenses
|
11,209 | 12,063 | ||||||
Disallowed interest
|
| 16,975 | ||||||
Translation loss and other
|
| 6,057 | ||||||
Allowances and accruals
|
488 | 2,678 | ||||||
|
||||||||
Total deferred tax assets
|
$ | 93,758 | $ | 191,971 | ||||
|
||||||||
Deferred tax liabilities:
|
||||||||
Deprecation and amortization
|
(47,022 | ) | (98,991 | ) | ||||
Translation loss and other
|
(8,323 | ) | (401 | ) | ||||
|
||||||||
Total deferred tax liabilities
|
(55,345 | ) | (99,392 | ) | ||||
|
||||||||
Net deferred tax assets
|
38,413 | (92,579 | ) | |||||
Valuation allowance
|
(38,413 | ) | (92,579 | ) | ||||
|
||||||||
Total net deferred taxes
|
$ | | $ | | ||||
|
A valuation allowance has been provided against the net deferred tax asset since these operations are in the start-up phase and do not have a history of profitable operations. Therefore, realization of the deferred tax asset can not be assured at this time. We continue to evaluate the realizability of the deferred tax assets and this estimate is subject to change. | ||
We have net operating loss carryforwards for federal and state tax purposes totaling $209.6 million and $393.8 million at December 31, 2005 and 2006, respectively, expiring at various times commencing in 2024. |
10. | Commitments and Contingencies |
(a) | Operating leases | ||
We operate principally in leased premises. Rent payable under non-cancelable operating lease commitments, primarily for offices and motor vehicles, was $6.5 million, $6.9 million and $9.0 million for the years ended December 31, 2004, 2005 and 2006, respectively. | |||
At December 31, 2006, minimum annual rentals for non-cancelable leases with initial or remaining terms in excess of one year were as follows (in thousands of dollars): |
2007
|
$ | 5,795 | ||
2008
|
5,595 | |||
2009
|
4,780 | |||
2010
|
4,174 | |||
2011
|
3,690 | |||
|
||||
Total
|
$ | 24,034 | ||
|
F-24
Rental payments applicable to such operating leases are recognized on a straight-line basis over the term of the lease. | |||
(b) | Ship charters | ||
We have entered into charter agreements with Star Cruises Limited for five ships for a period of one to four years in connection with the Reorganization (we refer you to Note 6). Charter expenses for these ships were $22.0 million, $28.6 million and $26.2 million for the years ended December 31, 2004, 2005 and 2006, respectively. | |||
At December 31, 2006, remaining charter payments were as follows (in thousands of dollars): |
2007
|
$ | 21,005 | ||
2008
|
15,332 | |||
2009
|
11,344 | |||
2010
|
224 | |||
|
||||
Total
|
$ | 47,905 | ||
|
(c) | Capital expenditures | ||
As of December 31, 2006, we had three ships on order for additional capacity of approximately 10,800 berths with scheduled deliveries in the fourth quarter of 2007, the fourth quarter of 2009 and the second quarter of 2010. The aggregate cost of the ships under construction and on firm order is approximately $2.6 billion, of which we have paid $0.2 billion based on the Euro/U.S. dollar exchange rate at December 31, 2006. The remaining costs of the ships on order as of December 31, 2006 are exposed to fluctuations in the Euro/U.S. dollar exchange rate at December 31, 2006. | |||
As of December 31, 2006, we anticipate that capital expenditures, including the three ships on order, will be approximately $0.6 billion, $0.3 billion, and $1.0 billion for the years ending December 31, 2007, 2008, and 2009, respectively. | |||
(d) | Material litigation |
(i) | A proposed class action suit was filed on August 1, 2000 in the U.S. District Court for the Southern District of Texas against us, alleging that we violated the Americans with Disabilities Act of 1990 (ADA) in our treatment of physically impaired passengers. The same plaintiffs also filed on the same date a proposed class action suit in a Texas state court alleging that we and a third party violated Texas Deceptive Trade Practices and Consumer Protection Act. The state court judge granted our motion for summary judgment and the plaintiff filed an appeal which is currently pending. On June 6, 2005, the U.S. Supreme Court ruled in the Federal matter that the ADA is applicable to foreign flagged cruise ships that operate in U.S. waters to the same extent that it applies to U.S. flagged ships. The U.S. Supreme Court remanded the case to the Fifth Circuit Court of Appeals to determine which claims in the lawsuit remain and the Fifth Circuit remanded the case to the trial court. We have filed a motion for summary judgment in the trial court which is currently pending. |
F-25
(ii) | A proposed class action suit was filed on December 20, 2000 in a Florida State Court alleging that we discriminated against disabled persons in violation of the ADA and the Florida Trade Act on several of our ships. Discovery has commenced. We believe that we have meritorious defenses to these claims and, accordingly, are defending vigorously this action. | ||
(iii) | A proposed class action suit was filed on May 17, 2001 in the U.S. District Court for the Southern District of New York alleging that during the period from January 1998 through March 2005, we failed to pay unlicensed seafarers overtime wages in accordance with their contracts of employment. The court entered an order certifying the case as a class action. In March 2005, the parties reached a settlement which was subsequently approved by the court. We believe that the ultimate outcome of this matter will not have a material impact on our financial position, results of operations or cash flows. | ||
(iv) | On July 25, 2002, we were served with a complaint in which a former employee alleged that we failed to pay him severance pay/employment benefits following his discharge. The matter was tried before a jury in January 2007 at which time a verdict in favor of plaintiff was returned. Trial counsel is currently evaluating possible appealable issues. | ||
(v) | In May 2003, an explosion in the boiler room onboard Norway resulted in the death of eight crew members and the injury of approximately 20 other crew members. All personal injury claims stemming from this incident are covered by our insurance. The incident is currently under investigation by regulatory authorities and the United States Attorneys Office for the Southern District of Florida. We are cooperating with the investigation. To date, none of the agencies involved has rendered opinions or conclusions concerning the incident. | ||
(vi) | On or about February 3, 2006, we were served with a class action complaint filed in the United States District Court for the Southern District of New York alleging copyright infringement stemming from performances of certain portions of copyrighted music aboard our ships. We believe that we have meritorious defenses to these claims and, accordingly, are defending vigorously this action. | ||
(vii) | On June 16, 2006, a complaint was filed against us in the Circuit Court of Miami-Dade County, Florida, alleging breach of contract and fraudulent misrepresentation stemming from two 2004 charter sailings of Pride of Aloha . We believe that we have meritorious defenses to these claims and, accordingly, are defending vigorously this action. | ||
(viii) | On July 14, 2006, we were served with a complaint filed in Florida State court on behalf of a former onboard concessionaire alleging breach of contract and unjust enrichment. We believe that we have meritorious defenses to these claims and, accordingly, are defending vigorously this action. | ||
(ix) | On August 24, 2006, we were served with a complaint by the U.S. Equal Employment Opportunity Commission to correct alleged unlawful employment practices on the basis of national origin and religion and to provide relief to seven former employees who were allegedly terminated as a result of same. We believe that we have |
F-26
meritorious defenses to these claims and, accordingly, are defending vigorously this action. | |||
(x) | In the normal course of our business, various other claims and lawsuits have been filed or are pending against us. Most of these claims and lawsuits are covered by insurance and, accordingly, the maximum amount of our liability is typically limited to our deductible amount. Nonetheless, the ultimate outcome of these claims and lawsuits that are not covered by insurance cannot be determined at this time. We have evaluated our overall exposure with respect to all of our threatened and pending litigation. To the extent required, we have accrued amounts for all estimable probable losses associated with our deemed exposure. We are currently unable to estimate any other potential contingent losses beyond those accrued, as discovery is not complete nor is adequate information available to estimate such range of loss or potential recovery. As discussed above, we intend to vigorously defend our legal position on all claims and, to the extent necessary, seek recovery. At December 31, 2006, we had accrued amounts of approximately $8.9 million for the above pending legal matters. |
(e) | Commitments | ||
We have future commitments to pay for usage of certain port facilities as follows at December 31, 2006 (in thousands of dollars): |
2007
|
$ | 8,158 | ||
2008
|
7,819 | |||
2009
|
8,089 | |||
2010
|
8,174 | |||
2011
|
7,979 | |||
Thereafter
|
52,862 | |||
|
||||
Total
|
$ | 93,081 | ||
|
(f) | Credit Card Processor | ||
We have a letter of credit facility not to exceed $100 million, which collateralizes the risk in processing our credit card sales transactions. The letter of credit facility expires in April 2008. | |||
(g) | Other | ||
Certain contracts we enter into include indemnification provisions that obligate us to make payments to the counterparty if certain events occur. The indemnification clauses are often standard contractual terms that 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 clauses in the past, and do not believe that, under current circumstances, a request for indemnification is probable. |
F-27
11. | Supplemental Cash Flow Information | |
In 2004, we had non-cash financing activities related to the retirement of debt due to our Parent of $366.6 million. Furthermore, during the year ended December 31, 2004, we had non-cash investing and financing activities associated with the transfer of $804.9 million in property and equipment, $19.7 million in other assets and $403.2 million in related debt to our Parent in exchange for a $46.5 million note receivable and settlement of $374.8 million in amounts due to our Parent. | ||
For the years ended 2005 and 2006 we had non-cash investing activities related to capital leases of $10.3 million and $8.4 million, respectively. |
F-28
Page | ||||||
1 |
Definitions and Construction
|
2 | ||||
2 |
Amendment of Original Loan Agreement, Original Guarantee and Security Documents
|
2 | ||||
3 |
Conditions Precedent
|
3 | ||||
4 |
Representations and Warranties
|
4 | ||||
5 |
Expenses
|
5 | ||||
6 |
Further Assurance
|
6 | ||||
7 |
Counterparts
|
6 | ||||
8 |
Notices
|
6 | ||||
9 |
Governing Law
|
7 | ||||
10 |
Jurisdiction
|
7 | ||||
Schedule 1 |
Amendment of Original Loan Agreement
|
9 | ||||
Schedule 2 |
Amendment of Original Guarantee
|
10 | ||||
Schedule 3 |
Quarterly Statement of Financial Covenants
|
11 |
(1) | NORWEGIAN DAWN LIMITED of International House, Castle Hill, Victoria Road, Douglas, Isle of Man IM2 4RB, British Isles as borrower (the Borrower ); | |
(2) | NCL CORPORATION LTD. of Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the Guarantor ); | |
(3) | COMMERZBANK AKTIENGESELLSCHAFT , Hamburg Branch of Ness 7-9, 20457 Hamburg, Federal Republic of Germany as co-ordinator (the Co-ordinator ); and | |
(4) | COMMERZBANK INTERNATIONAL S.A. of 25 rue Edward Steichen, L-2540 Luxembourg as agent for itself and the Lenders (the Agent ). |
(A) | By a loan agreement dated 26 June 1999 as amended by transfer certificates dated 23 June 2000, 4 December 2000, 19 January 2001 and 22 February 2001 between Commerzbank Aktiengesellschaft, Emden Branch as transferor and Bremer Bank Niederlassung der Dresdner Bank Aktiengesellschaft, Bremen, Deutsche Schiffsbank Aktiengesellschaft, Bremen and Hamburg, The Bank of Nova Scotia, Singapore Branch and Landesbank Schleswig-Holstein Girozentrale (now known as HSH Nordbank AG) respectively as transferees, a first supplemental agreement dated 17 August 2000, a second supplemental agreement dated 23 October 2001, a third supplemental agreement dated 21 March 2002, a fourth supplemental agreement dated 20 April 2004 and a fifth supplemental agreement dated as of 30 September 2005 (the Supplemental Agreements and together with the said loan agreement and the said transfer certificates the Original Loan Agreement ) entered into between (among others) the Borrower and Norwegian Star Limited (the Original Borrowers ), the Lenders, the Co-ordinator and the Agent, the Lenders granted to the Original Borrowers a secured loan in the maximum amount of six hundred and twenty six million nine hundred and twenty two thousand Dollars (USD626,922,000) (the Facility ) to part-finance the construction by the Builder of (among other things) the Norwegian Dawn Vessel to be purchased by Norwegian Dawn for the Norwegian Dawn Contract Price (as such term is defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Facility by the Borrower has been secured by (among other things) a guarantee and indemnity dated 23 April 2004 executed by the Guarantor as amended by the said fifth supplemental agreement dated as of 30 September 2005 (the Original Guarantee ). | |
(B) | The Guarantor has requested the consent of the Lenders, the Agent and the Co-ordinator to the amendment of certain provisions of the Original Loan Agreement and the Original Guarantee to conform such provisions to similar provisions in other loan documentation to which the Guarantor and/or other members of the NCLC Group are party. This Deed shall be executed as a deed. |
1 | Definitions and Construction |
1.1 | In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have the meanings set out below: | ||
Guarantee means the Original Guarantee as amended by this Deed; and | |||
Loan Agreement means the Original Loan Agreement as amended by this Deed. | |||
1.2 | The provisions of Clauses 1.2 and 1.3 of the Loan Agreement shall apply hereto (mutatis mutandis). |
2 | Amendment of Original Loan Agreement, Original Guarantee and Security Documents |
2.1 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Loan Agreement shall be read and construed as if the clauses referred to in the first column of Schedule 1 had been amended to read as set out in the second column of Schedule 1. | ||
2.2 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Guarantee shall be read and construed as if: |
2.2.1 | the clauses referred to in the first column of Schedule 2 had been amended to read as set out in the second column of Schedule 2; and | ||
2.2.2 | schedule 1 had been deleted and substituted with Schedule 3. |
2.3 | Each of the Borrower and the Guarantor hereby confirms to the Agent and the Co-ordinator that with effect from the date of this Deed: |
2.3.1 | all references to the Original Loan Agreement in the Security Documents to which it is a party shall be construed as references to the Loan Agreement and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement; | ||
2.3.2 | the Security Documents to which it is a party shall apply to, and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement; | ||
2.3.3 | its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby; and | ||
2.3.4 | its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the |
2
Borrower under the Loan Agreement and the other Security Documents as amended by this Deed. |
2.4 | Except as expressly amended hereby or pursuant hereto the Original Loan Agreement and the Security Documents shall remain in full force and effect and nothing herein contained shall relieve the Borrower or any other Obligor from any of its respective obligations under any such documents. |
3 | Conditions Precedent |
3.1 | The consent of the Agent and the Co-ordinator for themselves and on behalf of the Lenders to the variation of the provisions of the Original Loan Agreement and the Original Guarantee is conditional upon and shall not be effective unless and until the Co-ordinator has received the following in form and substance satisfactory to it: |
3.1.1 | on the date of this Deed, one (1) counterpart of this Deed duly executed by the Borrower and the Guarantor; | ||
3.1.2 | a written confirmation from the Process Agent that it will act for the Borrower and the Guarantor as agent for service of process in England in respect of this Deed; | ||
3.1.3 | the following corporate documents in respect of each of the Borrower and the Guarantor (together the Relevant Parties ): |
(a) | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant Party of its obligations under this Deed or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required; | ||
(b) | notarially attested secretarys certificate of each of the Relevant Parties: |
(i) | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) evidencing power to enter into the transactions contemplated in this Deed; | ||
(ii) | giving the names of its present officers and directors; | ||
(iii) | setting out specimen signatures of such officers and directors as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant Partys obligations under this Deed; | ||
(iv) | giving the legal owner of its shares and the number of such shares held; | ||
(v) | attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the |
3
Co-ordinator, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and | |||
(vi) | containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party; |
or (if applicable) certifying that there has been no change to the statements made in his or her secretarys certificate last provided to the Co-ordinator with respect to paragraphs (b)(i), (ii), (iii), (iv) and (vi) of this Clause 3.1.3(b) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Co-ordinator, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; |
3.1.4 | the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested; | ||
3.1.5 | a Certified Copy of a letter from the Borrower to the Manager notifying of the provisions of clause 10.14(C) of the Loan Agreement; and | ||
3.1.6 | the issue of such favourable written legal opinions including in respect of the Isle of Man and Bermuda in such form as the Co-ordinator may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, |
PROVIDED THAT no Event of Default and (save as disclosed in writing to the Agent and the Co-ordinator before the date of this Deed) no Possible Event of Default has occurred and is continuing on the date on which the conditions precedent set out in this Clause 3.1 have been satisfied (subject to Clause 3.2). | |||
3.2 | If the Co-ordinator in accordance with the Agency and Trust Deed decides to permit the amendment of the Original Loan Agreement and the Original Guarantee hereby without having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Co-ordinator within fourteen (14) days of the date of this Deed (or such other period as the Co-ordinator may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the Co-ordinators right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Co-ordinator or the Lenders any obligation to permit the amendment in the absence of such documents or evidence. |
4 | Representations and Warranties |
4.1 | Each of the Borrower and the Guarantor represents and warrants to the Agent and the Co-ordinator that: |
4
4.1.1 | it has the power to enter into and perform this Deed and the transactions contemplated hereby and has taken all necessary action to authorise the entry into and performance of this Deed and such transactions; | ||
4.1.2 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
4.1.3 | its entry into and performance of this Deed and the transactions contemplated hereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Agent; | |||
4.1.4 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect; | ||
4.1.5 | all information furnished by it to the Co-ordinator or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and | ||
4.1.6 | it has fully disclosed in writing to the Co-ordinator all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to influence the Agent or the Co-ordinator in deciding whether or not to enter into this Deed. |
5 | Expenses | |
The Borrower and the Guarantor jointly and severally undertake to reimburse the Co-ordinator immediately on demand on a full indemnity basis for the charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent or the Co-ordinator in respect of the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed. |
5
6 | Further Assurance | |
Each of the Borrower and the Guarantor will, from time to time on being required to do so by the Co-ordinator, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Co-ordinator as the Co-ordinator may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Agent or the Co-ordinator the full benefit of the rights, powers and remedies conferred upon the Agent or the Co-ordinator in any such document. | ||
7 | Counterparts | |
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. | ||
8 | Notices |
8.1 | Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower or the Guarantor pursuant to this Deed shall (unless the Borrower or the Guarantor has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department (but one (1) copy shall suffice)) with a copy to c/o Star Cruises Limited, Star Cruises Terminal, Pulau Indah, PO Box No. 288, 42009 Pelabuhan Klang, Selangor Darul Ehsan, Malaysia (marked for the attention of Mr Gerard Lim). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Borrower and the Guarantor specified another address) be made or delivered to the Agent at its Office, the details of which are set out in schedule 2 of the Original Loan Agreement. | ||
8.2 | Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to +60 3 3884 0213 (marked for the attention of Mr Gerard Lim) and in the case of the Agent or the Co-ordinator is as recorded in schedule 2 of the Original Loan Agreement) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent or the Co-ordinator by the Borrower or the Guarantor, shall be signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent or the Co-ordinator to the Borrower and the Guarantor. | ||
8.3 | The provisions of clauses 20.1, 20.4 and 20.5 of the Original Loan Agreement shall apply to this Deed. |
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9 | Governing Law | |
This Deed shall be governed by English law. | ||
10 | Jurisdiction |
10.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 10.1 is for the benefit of the Agent and the Co-ordinator only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions. | |||
10.2 | Neither the Borrower nor the Guarantor may, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Borrowers and/or the Guarantors (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
10.3 | For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrowers or the Guarantors (as the case may be) process agent in England with the unconditional authority described in Clause 10.2. | ||
10.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment. | ||
10.5 | Each of the Borrower and the Guarantor appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. | ||
10.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the case may be) and may be enforced without review in any other jurisdiction. | ||
10.7 | Nothing in this Clause shall exclude or limit any right which the Agent or the Co-ordinator may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service |
7
of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | |||
10.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Vijay Jeyaratnam | ||||||
by Vijay Jeyaratnam
|
) | |||||||
for and on behalf of
|
) | |||||||
NORWEIGIAN DAWN LIMITED
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
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One St. Pauls ChurchYard | ) | ||||||
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London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
by Colin Veitch
|
) | |||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
in the presence of:
|
Mark E. Warren | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
COMMERZBANK AKTIENGESELLSCHAFT
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by
Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
COMMERZBANK
INTERNATIONAL S.A.
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) |
8
Definition/Clause | Amendment | |
Clause 9.2(U)
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Completeness of documents The copies of the Building Contracts, the Management Agreements and any other relevant third party agreements delivered to the Co-ordinator are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed other than (if applicable), in the case of the Management Agreements, in accordance with Clause 10.14 nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | |
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||
Clause 10.14
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Management | |
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||
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Except with the prior consent of the Co-ordinator, neither Borrower will: | |
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||
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(A) permit any person other than the Manager to be the manager of, including providing crewing services to, its Vessel; | |
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||
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(B) permit any amendment to be made to the terms of the Management Agreement in respect of its Vessel unless the amendment is advised by the Borrowers tax counsel or is deemed necessary by the parties thereto but provided that the amendment does not imperil the security to be provided pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its obligations under the Transaction Documents; or | |
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||
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(C) permit its Vessel to be employed other than within the NCL or NCL America brand (as applicable). |
9
Definition/Clause | Amendment | |
Clause 11.1(C)
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as at 30 September 2006 and as at the end of each subsequent financial quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**] [Confidential Treatment]. | |
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||
|
Amounts available for drawing under any revolving or other credit facilities of the NCLC Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
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TO:
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COMMERZBANK AKTIENGESELLSCHAFT | |
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Hamburg Branch | |
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Ness 7-9 | |
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20457 Hamburg | |
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Federal Republic of Germany |
NCL CORPORATION LTD.
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|
|
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By: [
]
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|
Chief Financial Officer
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|
|
|
Dated
: 20[ ]
|
11
Clause (of | ||||||
Guarantee) | as of [] | Required Covenants | ||||
11.1(A)/
11.1(B)(ii)** |
Free Liquidity | A |
A>[**] [Confidential Treatment]
(11.1(A))** A>[**] [Confidential Treatment] (11.1(B)(ii))** |
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||||||
11.1(B)(i)
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Consolidated EBITDA: | B | >[**] [Confidential Treatment] | |||
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||||||
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Consolidated Debt Service | C | ||||
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||||||
11.1(C)
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Total Net Funded Debt: | D | <[**] [Confidential Treatment] | |||
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||||||
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Total Capitalisation | E |
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Consolidated EBITDA | |||||
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Consolidated Net Income (loss) | x | ||||
(Deduct)/Add:
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(Gain)/Loss on sale of assets or reserves | x | ||||
Add:
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Consolidated Interest Expense | x | ||||
Add:
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Depreciation and amortisation of assets | x | ||||
Add:
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Impairment charges | x | ||||
(Deduct)/Add:
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Other non-cash charges (gains) | x | ||||
Add:
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Deferred income tax expense | x | ||||
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||||||
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Consolidated EBITDA | x | B | |||
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||||||
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Consolidated Debt Service | |||||
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Principal paid/payable (excluding balloon payments, voluntary prepayments/repayments on sale/total loss of an NCLC Fleet vessel) | x | ||||
Add:
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Consolidated Interest Expense | x | ||||
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Distributions | x | ||||
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Rent under capitalised leases | x | ||||
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||||||
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Consolidated Debt Service | x | C | |||
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||||||
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Total Net Funded Debt | |||||
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Indebtedness for Borrowed Money | x | ||||
Add:
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Guarantees of non-NCLC Group members obligations | x | ||||
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||||||
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x | |||||
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||||||
Deduct:
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Cash Balance | (x) | ||||
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||||||
|
Total Net Funded Debt | (x) | D | |||
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||||||
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Total Capitalisation | |||||
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Total Net Funded Debt | x | ||||
Add:
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Consolidated stockholders equity | x | ||||
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||||||
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Total Capitalisation | x | E | |||
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12
|
|
||
Chief Financial Officer
|
||
NCL CORPORATION LTD.
|
** | Evidence satisfactory to the Co-ordinator of A at all times during the relevant period shall be provided together with this statement |
13
Page | ||||||
1 |
Definitions and Construction
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1 | ||||
2 |
Amendment of Original Loan Agreement, Original Guarantee and Security Documents
|
2 | ||||
3 |
Conditions Precedent
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2 | ||||
4 |
Representations and Warranties
|
4 | ||||
5 |
Expenses
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5 | ||||
6 |
Further Assurance
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5 | ||||
7 |
Counterparts
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5 | ||||
8 |
Notices
|
6 | ||||
9 |
Governing Law
|
6 | ||||
10 |
Jurisdiction
|
6 | ||||
Schedule 1 |
Amendment of Original Loan Agreement
|
9 | ||||
Schedule 2 |
Amendment of Original Guarantee
|
10 | ||||
Schedule 3 |
Quarterly Statement of Financial Covenants
|
11 |
(1) | NORWEGIAN SUN LIMITED of Canons Court, 22 Victoria Street, Hamilton HM 12, Bermuda as borrower (the Borrower ); | |
(2) | NCL CORPORATION LTD. of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda (the Guarantor ); | |
(3) | DnB NOR BANK ASA of Stranden 21, NO-0021 Oslo, Norway as paying agent for itself and the Lenders (as hereinafter defined) (the Paying Agent ); and | |
(4) | THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED of 1 Queens Road Central, Hong Kong as security agent for the Lenders (the Security Agent ). |
(A) | By a loan agreement dated 9 July 2003 as amended and restated by a first supplemental deed thereto dated 20 April 2004 and as supplemented by a second supplemental deed thereto dated as of 30 September 2005 (the Original Loan Agreement ) entered into between (among others) the Borrower, the Lenders, the Paying Agent and the Security Agent, the Lenders granted to the Borrower a secured loan in the maximum amount of two hundred and twenty five million Dollars (USD225,000,000) (the Facility ) to part-finance the acquisition by the Borrower of m.v. NORWEGIAN SUN (the Vessel ) on the terms and conditions therein contained. The repayment of the Facility by the Borrower has been secured by (among other things) a guarantee and indemnity dated 23 April 2004 executed by the Guarantor as amended by the said second supplemental deed dated as of 30 September 2005 (the Original Guarantee ). | |
(B) | The Guarantor has requested the consent of the Lenders, the Security Agent and the Paying Agent to the amendment of certain provisions of the Original Loan Agreement and the Original Guarantee to conform such provisions to similar provisions in other loan documentation to which the Guarantor and/or other members of the NCLC Group are party. This Deed shall be executed as a deed. |
1 | Definitions and Construction |
1.1 | In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have the meanings set out below: | ||
Guarantee means the Original Guarantee as amended by this Deed; and | |||
Loan Agreement means the Original Loan Agreement as amended by this Deed. |
1.2 | The provisions of Clauses 1.2 and 1.3 of the Loan Agreement shall apply hereto (mutatis mutandis). | ||
2 | Amendment of Original Loan Agreement, Original Guarantee and Security Documents | ||
2.1 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Loan Agreement shall be read and construed as if the clauses referred to in the first column of Schedule 1 had been amended to read as set out in the second column of Schedule 1. | ||
2.2 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Guarantee shall be read and construed as if: |
2.2.1 | the clause referred to in the first column of Schedule 2 had been amended to read as set out in the second column of Schedule 2; and | ||
2.2.2 | schedule 1 had been deleted and substituted with Schedule 3. |
2.3 | Each of the Borrower and the Guarantor hereby confirms to the Security Agent and the Paying Agent that with effect from the date of this Deed: |
2.3.1 | all references to the Original Loan Agreement in the Security Documents to which it is a party shall be construed as references to the Loan Agreement and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement; | ||
2.3.2 | the Security Documents to which it is a party shall apply to, and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement; | ||
2.3.3 | its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby; and | ||
2.3.4 | its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan Agreement and the other Security Documents as amended by this Deed. |
2.4 | Except as expressly amended hereby or pursuant hereto the Original Loan Agreement and the Security Documents shall remain in full force and effect and nothing herein contained shall relieve the Borrower or any other Obligor from any of its respective obligations under any such documents. |
3 | Conditions Precedent |
3.1 | The consent of the Security Agent and the Paying Agent for themselves and on behalf of the Lenders to the variation of the provisions of the Original Loan Agreement and the Original Guarantee is conditional upon and shall not be |
2
effective unless and until the Paying Agent has received the following in form and substance satisfactory to it: |
3.1.1 | on the date of this Deed, one (1) counterpart of this Deed duly executed by the Borrower and the Guarantor; | ||
3.1.2 | a written confirmation from the Process Agent that it will act for the Borrower and the Guarantor as agent for service of process in England in respect of this Deed; | ||
3.1.3 | the following corporate documents in respect of each of the Borrower and the Guarantor (together the Relevant Parties ): |
(a) | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant Party of its obligations under this Deed or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required; | ||
(b) | notarially attested secretarys certificate of each of the Relevant Parties: |
(i) | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) evidencing power to enter into the transactions contemplated in this Deed; | ||
(ii) | giving the names of its present officers and directors; | ||
(iii) | setting out specimen signatures of such officers and directors as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant Partys obligations under this Deed; | ||
(iv) | giving the legal owner of its shares and the number of such shares held; | ||
(v) | attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Paying Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and | ||
(vi) | containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party; |
or (if applicable) certifying that there has been no change to the statements made in his or her secretarys certificate last provided to the Paying Agent with respect to paragraphs (b)(i), (ii), (iii), (iv) and (vi) of this Clause 3.1.3(b) and attaching copies of |
3
resolutions passed at duly convened meetings of the directors and, if required by the Paying Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; |
3.1.4 | the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested; | ||
3.1.5 | a Certified Copy of a letter from the Borrower to the Manager notifying of the provisions of clause 10.14(c) of the Loan Agreement; and | ||
3.1.6 | the issue of such favourable written legal opinions including in respect of Bermuda in such form as the Paying Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, |
PROVIDED THAT no Event of Default and (save as disclosed in writing to the Paying Agent and the Security Agent before the date of this Deed) no Possible Event of Default has occurred and is continuing on the date on which the conditions precedent set out in this Clause 3.1 have been satisfied (subject to Clause 3.2). | |||
3.2 | If the Paying Agent in accordance with the Agency and Trust Deed decides to permit the amendment of the Original Loan Agreement and the Original Guarantee hereby without having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Paying Agent within fourteen (14) days of the date of this Deed (or such other period as the Paying Agent may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the Paying Agents right to receive the documents or evidence as aforesaid nor shall this provision impose on the Security Agent, the Paying Agent or the Lenders any obligation to permit the amendment in the absence of such documents or evidence. |
4 | Representations and Warranties |
4.1 | Each of the Borrower and the Guarantor represents and warrants to the Security Agent and the Paying Agent that: |
4.1.1 | it has the power to enter into and perform this Deed and the transactions contemplated hereby and has taken all necessary action to authorise the entry into and performance of this Deed and such transactions; | ||
4.1.2 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
4.1.3 | its entry into and performance of this Deed and the transactions contemplated hereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or |
4
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Security Agent; |
4.1.4 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect; | ||
4.1.5 | all information furnished by it to the Paying Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and | ||
4.1.6 | it has fully disclosed in writing to the Paying Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to influence the Security Agent or the Paying Agent in deciding whether or not to enter into this Deed. |
5 | Expenses | |
The Borrower and the Guarantor jointly and severally undertake to reimburse the Paying Agent on demand on a full indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Security Agent or the Paying Agent in respect of the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed. | ||
6 | Further Assurance | |
Each of the Borrower and the Guarantor will, from time to time on being required to do so by the Paying Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Paying Agent as the Paying Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Security Agent or the Paying Agent the full benefit of the rights, powers and remedies conferred upon the Security Agent or the Paying Agent in any such document. | ||
7 | Counterparts | |
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. |
5
8 | Notices |
8.1 | Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower or the Guarantor pursuant to this Deed shall (unless the Borrower or the Guarantor has by fifteen (15) days written notice to the Paying Agent specified another address) be made or delivered to the Borrower and/or the Guarantor c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department (but one (1) copy shall suffice)) with a copy to c/o Star Cruises Limited, Star Cruises Terminal, Pulau Indah, PO Box No. 288, 42009 Pelabuhan Klang, Selangor Darul Ehsan, Malaysia (marked for the attention of Mr Gerard Lim). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Paying Agent has by fifteen (15) days written notice to the Borrower and the Guarantor specified another address) be made or delivered to the Paying Agent at its Office, the details of which are set out in schedule 2 of the Original Loan Agreement. | ||
8.2 | Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to +60 3 3884 0213 (marked for the attention of Mr Gerard Lim) and in the case of the Security Agent or the Paying Agent is as recorded in schedule 2 of the Original Loan Agreement) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Security Agent or the Paying Agent by the Borrower or the Guarantor, shall be signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Security Agent or the Paying Agent to the Borrower and the Guarantor. | ||
8.3 | The provisions of clauses 20.1, 20.4 and 20.5 of the Original Loan Agreement shall apply to this Deed. |
9 | Governing Law | |
This Deed shall be governed by English law. | ||
10 | Jurisdiction |
10.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 10.1 is for the benefit of the Security Agent and the Paying Agent only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed |
6
by law, any such party may take concurrent proceedings in any number of jurisdictions. | |||
10.2 | Neither the Borrower nor the Guarantor may, without the Paying Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Paying Agent to act as the Borrowers and/or the Guarantors (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
10.3 | For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 10.2, the Paying Agent may appoint any person (including a company controlled by or associated with the Paying Agent or any Lender) to act as the Borrowers or the Guarantors (as the case may be) process agent in England with the unconditional authority described in Clause 10.2. | ||
10.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment. | ||
10.5 | Each of the Borrower and the Guarantor appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. | ||
10.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the case may be) and may be enforced without review in any other jurisdiction. | ||
10.7 | Nothing in this Clause shall exclude or limit any right which the Security Agent or the Paying Agent may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | ||
10.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
7
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Vijay Jeyaratnam | ||||||
by Vijay Jeyaratnam
|
) | |||||||
for and on behalf of
|
) | |||||||
NORWEIGIAN
SUN LIMITED
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
by Colin Veitch
|
) | |||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
in the presence of:
|
Mark E. Warren | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
DnB
NOR BANK ASA
|
) | |||||||
as
the Paying Agent
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Marcus Pcumley | ||||||
by Marcus Pcumley
|
) | |||||||
for and on behalf of
|
) | |||||||
THE HONGKONG AND SHANGHAI
|
) | |||||||
BANKING CORPORATION LIMITED
|
) | |||||||
as
the Security Agent
|
) | |||||||
in the presence of:
|
Mark Looi | ) | ||||||
|
HSBC Bank Plc | ) | ||||||
|
Project and Export Finance
Floor 17 |
) | ||||||
|
8 Canada Square | ) | ||||||
|
London EL14 5HQ | ) |
8
Definition/Clause | Amendment | |
Clause 9.2.21
|
Completeness of documents The copies of the MOA, the Management Agreement, the Second Mortgage Documents and any other relevant third party agreements delivered to the Paying Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed other than (if applicable), in the case of the Management Agreement, in accordance with Clause 10.14 nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | |
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||
Clause 10.14
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Management | |
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||
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Except with the prior consent of the Majority Lenders, the Borrower will not: | |
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||
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(a) permit any person other than the Manager to be the manager of, including providing crewing services to, the Vessel; | |
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||
|
(b) permit any amendment to be made to the terms of the Management Agreement unless the amendment
is advised by the Borrowers tax counsel or is deemed necessary by the parties thereto but
provided that the amendment does not imperil the security to be provided pursuant to the Security
Documents or adversely affect the ability of any Obligor to perform its obligations under the
Transaction Documents; or
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|
|
||
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(c) permit the Vessel to be employed other than within the NCL or NCL America brand (as applicable). |
9
Definition/Clause | Amendment | |
Clause 11.1.3
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as at 30 September 2006 and as at the end of each subsequent financial quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**] [Confidential Treatment]. | |
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||
|
Amounts available for drawing under any revolving or other credit facilities of the NCLC Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
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TO:
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DnB NOR BANK ASA | |
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Stranden 21 | |
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NO-0021 Oslo | |
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Norway | |
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||
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Attn : Mr Jon Flovik |
NCL CORPORATION LTD.
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||
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||
|
||
Chief Financial Officer
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11
Clause (of | ||||||
Guarantee) | as of [] | Required Covenants | ||||
11.1.1/
11.1.2(b)** |
Free Liquidity | A |
A > [**] [Confidential Treatment]
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|||
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||||||
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A > [**] [Confidential Treatment]
(11.1.2(b))** |
|||||
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||||||
11.1.2(a)
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Consolidated EBITDA: | B | >[**] [Confidential Treatment] | |||
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||||||
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Consolidated Debt Service | C | ||||
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||||||
11.1.3
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Total Net Funded Debt: | D | <[**] [Confidential Treatment] | |||
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||||||
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Total Capitalisation | E |
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Consolidated EBITDA | |||||
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Consolidated Net Income (loss) | x | ||||
(Deduct)/Add:
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(Gain)/Loss on sale of assets or reserves | x | ||||
Add:
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Consolidated Interest Expense | x | ||||
Add:
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Depreciation and amortisation of assets | x | ||||
Add:
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Impairment charges | x | ||||
(Deduct)/Add:
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Other non-cash charges (gains) | x | ||||
Add:
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Deferred income tax expense | x | ||||
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||||||
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Consolidated EBITDA | x | B | |||
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||||||
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Consolidated Debt Service | |||||
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Principal paid/payable (excluding balloon payments, voluntary prepayments/repayments on sale/total loss of an NCLC Fleet vessel) | x | ||||
Add:
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Consolidated Interest Expense | x | ||||
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Distributions | x | ||||
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Rent under capitalised leases | x | ||||
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||||||
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Consolidated Debt Service | x | C | |||
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||||||
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Total Net Funded Debt | |||||
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Indebtedness for Borrowed Money | x | ||||
Add:
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Guarantees of non-NCLC Group members obligations | x | ||||
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||||||
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x | |||||
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||||||
Deduct:
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Cash Balance | (x) | ||||
|
||||||
|
Total Net Funded Debt | (x) | D | |||
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||||||
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Total Capitalisation | |||||
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Total Net Funded Debt | x | ||||
Add:
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Consolidated stockholders equity | x | ||||
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||||||
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Total Capitalisation | x | E | |||
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12
|
|
||
Chief Financial Officer
|
||
NCL CORPORATION LTD.
|
** | Evidence satisfactory to the Paying Agent of A at all times during the relevant period shall be provided together with this statement |
13
Page | ||||||
1 |
Definitions and Construction
|
1 | ||||
2 |
Amendment of Original Loan Agreement, Original Guarantee and Security Documents
|
2 | ||||
3 |
Conditions Precedent
|
3 | ||||
4 |
Representations and Warranties
|
5 | ||||
5 |
Expenses
|
6 | ||||
6 |
Further Assurance
|
6 | ||||
7 |
Counterparts
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6 | ||||
8 |
Notices
|
6 | ||||
9 |
Governing Law
|
7 | ||||
10 |
Jurisdiction
|
7 | ||||
Schedule 1 |
Amendment of Original Loan Agreement
|
10 | ||||
Schedule 2 |
Amendment of Original Guarantee
|
11 | ||||
Schedule 3 |
Quarterly Statement of Financial Covenants
|
12 |
(1) | PRIDE OF AMERICA SHIP HOLDING, INC. of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America as borrower (the Borrower ); | |
(2) | NCL CORPORATION LTD. of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the Guarantor ); | |
(3) | HSBC BANK PLC of 8 Canada Square, London E14 5HQ as agent (the Agent ); | |
(4) | COMMERZBANK AKTIENGESELLSCHAFT of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the Hermes Agent ); and | |
(5) | HSBC BANK PLC of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the Trustee ). |
(A) | By a loan agreement dated 4 April 2003 as amended and/or restated by a first supplemental agreement thereto dated 20 April 2004, a second supplemental agreement thereto dated 1 July 2004, a third supplemental agreement thereto dated 1 June 2005 (the Third Supplement ), a fourth supplemental agreement thereto dated 3 August 2005, a fifth supplemental agreement thereto dated as of 30 September 2005 and a sixth supplemental agreement thereto dated 22 December 2005 entered into between the Borrower or its predecessor Ship Holding LLC ( SHLLC ) as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders (the Original Loan Agreement ), the Lenders granted to the Borrower a secured loan in the maximum amount of the equivalent in Dollars and/or Euro of two hundred and fifty eight million Euro ( 258,000,000) (the Loan ) to part-finance the completion by the Builder of the Vessel for the Contract Price (as such terms are defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured by (among other things) a guarantee and indemnity dated 23 April 2004 granted by the Guarantor as amended and/or supplemented from time to time (the Original Guarantee ). | |
(B) | The Guarantor has requested the consent of the Lenders, the Agent, the Hermes Agent and the Trustee to the amendment of certain provisions of the Original Loan Agreement and the Original Guarantee to conform such provisions to similar provisions in other loan documentation to which the Guarantor and/or other members of the NCLC Group are party. This Deed shall be executed as a deed. |
1 | Definitions and Construction |
1.1 | In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals |
shall have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have the meanings set out below: | |||
Guarantee means the Original Guarantee as amended by this Deed; and | |||
Loan Agreement means the Original Loan Agreement as amended by this Deed. | |||
1.2 | The provisions of Clauses 1.2 and 1.3 of the Loan Agreement shall apply hereto (mutatis mutandis). |
2 | Amendment of Original Loan Agreement, Original Guarantee and Security Documents |
2.1 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Loan Agreement shall be read and construed as if the clauses referred to in the first column of Schedule 1 had been amended to read as set out in the second column of Schedule 1. | ||
2.2 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Guarantee shall be read and construed as if: |
2.2.1 | the clause referred to in the first column of Schedule 2 had been amended to read as set out in the second column of Schedule 2; and | ||
2.2.2 | schedule 1 had been deleted and substituted with Schedule 3. |
2.3 | Each of the Borrower and the Guarantor hereby confirms to the Agent, the Hermes Agent and the Trustee that with effect from the date of this Deed: |
2.3.1 | all references to the Original Loan Agreement in the Security Documents to which it is a party shall be construed as references to the Loan Agreement and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement; | ||
2.3.2 | the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger (as defined in the Third Supplement)) shall apply to, and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement; | ||
2.3.3 | its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby; and | ||
2.3.4 | its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall remain in full force and effect as security for the obligations of the |
2
Borrower under the Loan Agreement and the other Security Documents as amended by this Deed. |
2.4 | Except as expressly amended hereby or pursuant hereto the Original Loan Agreement and the Security Documents shall remain in full force and effect and nothing herein contained shall relieve the Borrower or any other Obligor from any of its respective obligations under any such documents. |
3 | Conditions Precedent |
3.1 | The consent of the Agent, the Hermes Agent and the Trustee for themselves and on behalf of the Lenders to the variation of the provisions of the Original Loan Agreement and the Original Guarantee is conditional upon and shall not be effective unless and until the Agent has received the following in form and substance satisfactory to it: |
3.1.1 | on the date of this Deed, one (1) counterpart of this Deed duly executed by the Borrower and the Guarantor; | ||
3.1.2 | a written confirmation from the Process Agent that it will act for the Borrower and the Guarantor as agent for service of process in England in respect of this Deed; | ||
3.1.3 | the following corporate documents in respect of each of the Borrower and the Guarantor (together the Relevant Parties ): |
(a) | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant Party of its obligations under this Deed or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required; | ||
(b) | notarially attested secretarys certificate of each of the Relevant Parties: |
(i) | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) evidencing power to enter into the transactions contemplated in this Deed; | ||
(ii) | giving the names of its present officers and directors; | ||
(iii) | setting out specimen signatures of such officers and directors as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant Partys obligations under this Deed; | ||
(iv) | giving the legal owner of its shares and the number of such shares held; | ||
(v) | attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the |
3
shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the amendment to the Post Redelivery Mortgage and the issue of any power of attorney to execute the same; and | |||
(vi) | containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party; |
or (if applicable) certifying that there has been no change to the statements made in his or her secretarys certificate last provided to the Agent with respect to paragraphs (b)(i), (ii), (iii), (iv) and (vi) of this Clause 3.1.3(b) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the amendment to the Post Redelivery Mortgage and the issue of any power of attorney to execute the same; |
3.1.4 | the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested; | ||
3.1.5 | a sixth amendment to the Post Redelivery Mortgage duly executed and lodged for recordation at the United States Coast Guard National Vessel Documentation Center; | ||
3.1.6 | Certified Copies of letters from the Borrower to the Manager and from the Manager to the Sub-Agent notifying of the provisions of clause 10.14(c) of the Loan Agreement; and | ||
3.1.7 | the issue of such favourable written legal opinions including in respect of the United States of America, Delaware and Bermuda in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, |
PROVIDED THAT no Event of Default and (save as disclosed in writing to the Agent before the date of this Deed) no Possible Event of Default has occurred and is continuing on the date on which the conditions precedent set out in this Clause 3.1 have been satisfied (subject to Clause 3.2) other than that Event of Default waived by the Agent pursuant to the letters dated 9 March 2004 and 20 April 2004 from the Agent to SHLLC. | |||
3.2 | If the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to permit the amendment of the Original Loan Agreement and the Original Guarantee hereby without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen (14) days of the date of this Deed (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the Agents right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the |
4
Lenders any obligation to permit the amendment in the absence of such documents or evidence. |
4 | Representations and Warranties |
4.1 | Each of the Borrower and the Guarantor represents and warrants to the Agent, the Hermes Agent and the Trustee that: |
4.1.1 | it has the power to enter into and perform this Deed and the transactions contemplated hereby and has taken all necessary action to authorise the entry into and performance of this Deed and such transactions; | ||
4.1.2 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
4.1.3 | its entry into and performance of this Deed and the transactions contemplated hereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Trustee; | |||
4.1.4 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect; | ||
4.1.5 | all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and | ||
4.1.6 | it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to influence the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed. |
5
5 | Expenses | |
The Borrower and the Guarantor jointly and severally undertake to reimburse the Agent on demand on a full indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent, the Hermes Agent or the Trustee in respect of the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed. | ||
6 | Further Assurance | |
Each of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Trustee the full benefit of the rights, powers and remedies conferred upon the Agent, the Hermes Agent or the Trustee in any such document. | ||
7 | Counterparts | |
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. | ||
8 | Notices |
8.1 | Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower or the Guarantor pursuant to this Deed shall (unless the Borrower or the Guarantor has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department (but one (1) copy shall suffice)) with a copy to c/o Star Cruises Limited, Star Cruises Terminal, Pulau Indah, PO Box No. 288, 42009 Pelabuhan Klang, Selangor Darul Ehsan, Malaysia (marked for the attention of Mr Gerard Lim). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Borrower and the Guarantor specified another address) be made or delivered to the Agent at its Office, the details of which are set out in schedule 2 of the Original Loan Agreement. | ||
8.2 | Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to +60 3 3884 0213 (marked for the attention of Mr Gerard Lim) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in schedule 2 of the Original Loan Agreement) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor, shall be signed by the |
6
person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor. | |||
8.3 | The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed. |
9 | Governing Law | ||
This Deed shall be governed by English law. | |||
10 | Jurisdiction |
10.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 10.1 is for the benefit of the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions. | |||
10.2 | Neither the Borrower nor the Guarantor may, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Borrowers and/or the Guarantors (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
10.3 | For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrowers or the Guarantors (as the case may be) process agent in England with the unconditional authority described in Clause 10.2. | ||
10.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment. |
7
10.5 | Each of the Borrower and the Guarantor appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. | ||
10.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the case may be) and may be enforced without review in any other jurisdiction. | ||
10.7 | Nothing in this Clause shall exclude or limit any right which the Agent, the Hermes Agent or the Trustee may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | ||
10.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Vijay Jeyaratnam | ||||||
by Vijay Jeyaratnam
|
) | |||||||
for and on behalf of
|
) | |||||||
PRIDE OF AMERICA SHIP HOLDING, INC.
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
by Colin Veitch
|
) | |||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
in the presence of:
|
Mark E. Warren | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
COMMERZBANK AKTIENGESELLSCHAFT
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) |
8
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Mark Looi | ||||||
by Mark Looi
|
) | |||||||
for and on behalf of
|
) | |||||||
HSBC BANK PLC
|
) | |||||||
as
the Agent and the Trustee
|
) | |||||||
in the presence of:
|
Marcus Pcumley | ) | ||||||
|
HSBC Bank Plc | ) | ||||||
|
Project and Export Finance | ) | ||||||
|
Floor 17 | ) | ||||||
|
8 Canada Square | ) | ||||||
|
London E14 5HQ | ) | ||||||
|
9
Definition/Clause | Amendment | |
Clause 9.2.21
|
Completeness of documents | |
|
||
|
The copies of the Building Contract, the Refund Guarantee, the Performance Guarantees, the Supervision Agreement, the Management Agreement, the Sub-Agency Agreement, the Interest Exchange Arrangements, the Commercial Loan Agreement and any other relevant third party agreements delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed other than (if applicable), in the case of the Management Agreement or the Sub-Agency Agreement, in accordance with Clause 10.14 nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | |
|
||
Clause 10.14
|
Supervision and Management | |
|
||
|
Except with the prior consent of the Agent, the Borrower will not: | |
|
||
|
(a) permit any person other than the Supervisor, the Manager and the Sub-Agent to be the
supervisor of completion and the manager and sub-agent of, including providing crewing services
to, the Vessel;
|
|
|
||
|
(b) permit any amendment to be made to the terms of the Supervision Agreement, the Management
Agreement or the Sub-Agency Agreement unless an amendment to the Management Agreement or the
Sub-Agency Agreement is advised by the Borrowers tax counsel or is deemed necessary by the
parties thereto but provided that the amendment does not imperil the security to be provided
pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its
obligations under the Transaction Documents; or
|
|
|
||
|
(c) permit the Vessel to be employed other than within the NCL or NCL America brand (as
applicable).
|
10
Definition/Clause
Amendment
as at 30 September 2006 and as at the end of each
subsequent financial quarter, the ratio of Total Net
Funded Debt to Total Capitalisation of the NCLC Group
shall not exceed [**] [Confidential Treatment].
Amounts available for drawing under any revolving or
other credit facilities of the NCLC Group which remain
undrawn at the time of the relevant calculation shall
not be counted as cash or indebtedness for the purposes
of this ratio.
11
TO:
|
HSBC BANK PLC | |
|
Project and Export Finance | |
|
8 Canada Square | |
|
London E14 5HQ | |
|
England | |
|
Attn: Mr Alan Marshall | |
|
(as the Hermes Loan Agent and the Commercial Loan Agent (as each such term is defined in the Guarantee (as hereinafter defined)) |
NCL CORPORATION LTD.
|
||
|
||
|
||
Chief Financial Officer
|
12
Clause (of Guarantee) | as of [·] | Required Covenants | ||||
11.1.1/
11.1.2(b)** |
Free Liquidity | A |
A>[**] [Confidential Treatment]
(11.1.1)** A>[**] [Confidential Treatment] (11.1.2(b))** |
|||
|
||||||
11.1.2(a)
|
Consolidated EBITDA: | B | >[**] [Confidential Treatment] | |||
|
||||||
|
Consolidated Debt Service | C | ||||
|
||||||
11.1.3
|
Total Net Funded Debt: | D | <[**] [Confidential Treatment] | |||
|
||||||
|
Total Capitalisation | E |
|
Consolidated EBITDA | |||||
|
Consolidated Net Income (loss) | x | ||||
(Deduct)/Add:
|
(Gain)/Loss on sale of assets or reserves | x | ||||
Add:
|
Consolidated Interest Expense | x | ||||
Add:
|
Depreciation and amortisation of assets | x | ||||
Add:
|
Impairment charges | x | ||||
(Deduct)/Add:
|
Other non-cash charges (gains) | x | ||||
Add:
|
Deferred income tax expense | x | ||||
|
||||||
|
||||||
|
Consolidated EBITDA | x | B | |||
|
||||||
|
Consolidated Debt Service | |||||
|
Principal paid/payable (excluding balloon payments, voluntary
prepayments/repayments on sale/total loss of an NCLC Fleet vessel) |
x | ||||
Add:
|
Consolidated Interest Expense | x | ||||
|
Distributions | x | ||||
|
Rent under capitalised leases | x | ||||
|
||||||
|
Consolidated Debt Service | x | C | |||
|
||||||
|
Total Net Funded Debt | |||||
|
Indebtedness for Borrowed Money | x | ||||
Add:
|
Guarantees of non-NCLC Group members obligations | x | ||||
|
||||||
|
x | |||||
|
||||||
|
||||||
Deduct:
|
Cash Balance | (x) | ||||
|
||||||
|
Total Net Funded Debt | (x) | D | |||
|
||||||
|
Total Capitalisation | |||||
|
Total Net Funded Debt | x | ||||
Add:
|
Consolidated stockholders equity | x | ||||
|
||||||
|
Total Capitalisation | x | E | |||
|
13
|
|
||
Chief Financial Officer
|
||
NCL CORPORATION LTD.
|
** | Evidence satisfactory to the Agent of A at all times during the relevant period shall be provided together with this statement |
14
Page | ||||||
1 |
Definitions and Construction
|
1 | ||||
2 |
Amendment of Original Loan Agreement, Original Guarantee and Security Documents
|
2 | ||||
3 |
Conditions Precedent
|
3 | ||||
4 |
Representations and Warranties
|
5 | ||||
5 |
Expenses
|
5 | ||||
6 |
Further Assurance
|
6 | ||||
7 |
Counterparts
|
6 | ||||
8 |
Notices
|
6 | ||||
9 |
Governing Law
|
7 | ||||
10 |
Jurisdiction
|
7 | ||||
Schedule 1 |
Amendment of Original Loan Agreement
|
9 | ||||
Schedule 2 |
Amendment of Original Guarantee
|
10 | ||||
Schedule 3 |
Quarterly Statement of Financial Covenants
|
11 |
(1) | PRIDE OF AMERICA SHIP HOLDING, INC. of Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America as borrower (the Borrower ); | |
(2) | NCL CORPORATION LTD. of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the Guarantor ); | |
(3) | HSBC BANK PLC of 8 Canada Square, London E14 5HQ as agent (the Agent ); | |
(4) | COMMERZBANK AKTIENGESELLSCHAFT of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the Hermes Agent ); and | |
(5) | HSBC BANK PLC of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the Trustee ). |
(A) | By a loan agreement dated 4 April 2003 as amended and/or restated by a first supplemental agreement thereto dated 20 April 2004, a second supplemental agreement thereto dated 1 July 2004, a third supplemental agreement thereto dated 1 June 2005 (the Third Supplement ), a fourth supplemental agreement thereto dated as of 30 September 2005 and a fifth supplemental agreement thereto dated 10 March 2006 entered into between the Borrower or its predecessor Ship Holding LLC ( SHLLC ) as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders (the Original Loan Agreement ), the Lenders granted to the Borrower a secured loan in the maximum amount of the equivalent in Dollars of forty million Euro ( 40,000,000) (the Loan ) to part-finance the completion by the Builder of the Vessel for the Contract Price (as such term is defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured by (among other things) a guarantee and indemnity dated 23 April 2004 granted by the Guarantor as amended and/or supplemented from time to time (the Original Guarantee ). | |
(B) | The Guarantor has requested the consent of the Lenders, the Agent, the Hermes Agent and the Trustee to the amendment of certain provisions of the Original Loan Agreement and the Original Guarantee to conform such provisions to similar provisions in other loan documentation to which the Guarantor and/or other members of the NCLC Group are party. This Deed shall be executed as a deed. |
1 | Definitions and Construction |
1.1 | In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall have the meaning ascribed to it therein and terms and expressions not |
defined herein but whose meanings are defined in the Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have the meanings set out below: | |||
Guarantee means the Original Guarantee as amended by this Deed; and | |||
Loan Agreement means the Original Loan Agreement as amended by this Deed. | |||
1.2 | The provisions of Clauses 1.2 and 1.3 of the Loan Agreement shall apply hereto (mutatis mutandis). |
2 | Amendment of Original Loan Agreement, Original Guarantee and Security Documents |
2.1 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Loan Agreement shall be read and construed as if the clauses referred to in the first column of Schedule 1 had been amended to read as set out in the second column of Schedule 1. | ||
2.2 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Guarantee shall be read and construed as if: |
2.2.1 | the clause referred to in the first column of Schedule 2 had been amended to read as set out in the second column of Schedule 2; and | ||
2.2.2 | schedule 1 had been deleted and substituted with Schedule 3. |
2.3 | Each of the Borrower and the Guarantor hereby confirms to the Agent, the Hermes Agent and the Trustee that with effect from the date of this Deed: |
2.3.1 | all references to the Original Loan Agreement in the Security Documents to which it is a party shall be construed as references to the Loan Agreement and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement; | ||
2.3.2 | the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger (as defined in the Third Supplement)) shall apply to, and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement; | ||
2.3.3 | its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby; and | ||
2.3.4 | its obligations under the Security Documents to which it is a party (in some cases, in the case of the Borrower, by virtue of the Merger) shall remain in full force and effect as security for the obligations of the Borrower under the Loan Agreement and the other Security Documents as amended by this Deed. |
2
2.4 | Except as expressly amended hereby or pursuant hereto the Original Loan Agreement and the Security Documents shall remain in full force and effect and nothing herein contained shall relieve the Borrower or any other Obligor from any of its respective obligations under any such documents. |
3 | Conditions Precedent |
3.1 | The consent of the Agent, the Hermes Agent and the Trustee for themselves and on behalf of the Lenders to the variation of the provisions of the Original Loan Agreement and the Original Guarantee is conditional upon and shall not be effective unless and until the Agent has received the following in form and substance satisfactory to it: |
3.1.1 | on the date of this Deed, one (1) counterpart of this Deed duly executed by the Borrower and the Guarantor; | ||
3.1.2 | a written confirmation from the Process Agent that it will act for the Borrower and the Guarantor as agent for service of process in England in respect of this Deed; | ||
3.1.3 | the following corporate documents in respect of each of the Borrower and the Guarantor (together the Relevant Parties ): |
(a) | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant Party of its obligations under this Deed or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required; | ||
(b) | notarially attested secretarys certificate of each of the Relevant Parties: |
(i) | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) evidencing power to enter into the transactions contemplated in this Deed; | ||
(ii) | giving the names of its present officers and directors; | ||
(iii) | setting out specimen signatures of such officers and directors as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant Partys obligations under this Deed; | ||
(iv) | giving the legal owner of its shares and the number of such shares held; | ||
(v) | attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and |
3
the amendment to the Mortgage and the issue of any power of attorney to execute the same; and | |||
(vi) | containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party; |
or (if applicable) certifying that there has been no change to the statements made in his or her secretarys certificate last provided to the Agent with respect to paragraphs (b)(i), (ii), (iii), (iv) and (vi) of this Clause 3.1.3(b) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the amendment to the Mortgage and the issue of any power of attorney to execute the same; |
3.1.4 | the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested; | ||
3.1.5 | a sixth amendment to the Mortgage duly executed and lodged for recordation at the United States Coast Guard National Vessel Documentation Center; | ||
3.1.6 | Certified Copies of letters from the Borrower to the Manager and from the Manager to the Sub-Agent notifying of the provisions of clause 10.14(c) of the Loan Agreement; and | ||
3.1.7 | the issue of such favourable written legal opinions including in respect of the United States of America, Delaware and Bermuda in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, |
PROVIDED THAT no Event of Default and (save as disclosed in writing to the Agent before the date of this Deed) no Possible Event of Default has occurred and is continuing on the date on which the conditions precedent set out in this Clause 3.1 have been satisfied (subject to Clause 3.2). | |||
3.2 | If the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to permit the amendment of the Original Loan Agreement and the Original Guarantee hereby without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen (14) days of the date of this Deed (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the Agents right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to permit the amendment in the absence of such documents or evidence. |
4
4 | Representations and Warranties |
4.1 | Each of the Borrower and the Guarantor represents and warrants to the Agent, the Hermes Agent and the Trustee that: |
4.1.1 | it has the power to enter into and perform this Deed and the transactions contemplated hereby and has taken all necessary action to authorise the entry into and performance of this Deed and such transactions; | ||
4.1.2 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
4.1.3 | its entry into and performance of this Deed and the transactions contemplated hereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Trustee; | |||
4.1.4 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect; | ||
4.1.5 | all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and | ||
4.1.6 | it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to influence the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed. |
5 | Expenses | |
The Borrower and the Guarantor jointly and severally undertake to reimburse the Agent on demand on a full indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees |
5
and expenses of legal and other advisers) incurred by the Agent, the Hermes Agent or the Trustee in respect of the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed. | ||
6 | Further Assurance | |
Each of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Trustee the full benefit of the rights, powers and remedies conferred upon the Agent, the Hermes Agent or the Trustee in any such document. | ||
7 | Counterparts | |
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. | ||
8 | Notices |
8.1 | Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower or the Guarantor pursuant to this Deed shall (unless the Borrower or the Guarantor has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department (but one (1) copy shall suffice)) with a copy to c/o Star Cruises Limited, Star Cruises Terminal, Pulau Indah, PO Box No. 288, 42009 Pelabuhan Klang, Selangor Darul Ehsan, Malaysia (marked for the attention of Mr Gerard Lim). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Borrower and the Guarantor specified another address) be made or delivered to the Agent at its Office, the details of which are set out in schedule 2 of the Original Loan Agreement. | ||
8.2 | Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to +60 3 3884 0213 (marked for the attention of Mr Gerard Lim) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in schedule 2 of the Original Loan Agreement) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor, shall be signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name |
6
has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor. | |||
8.3 | The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed. |
9 | Governing Law | |
This Deed shall be governed by English law. | ||
10 | Jurisdiction |
10.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 10.1 is for the benefit of the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions. | |||
10.2 | Neither the Borrower nor the Guarantor may, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Borrowers and/or the Guarantors (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
10.3 | For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrowers or the Guarantors (as the case may be) process agent in England with the unconditional authority described in Clause 10.2. | ||
10.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment. | ||
10.5 | Each of the Borrower and the Guarantor appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. |
7
10.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the case may be) and may be enforced without review in any other jurisdiction. | ||
10.7 | Nothing in this Clause shall exclude or limit any right which the Agent, the Hermes Agent or the Trustee may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | ||
10.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Vijay Jeyaratnam | ||||||
by Vijay Jeyaratnam
|
) | |||||||
for and on behalf of
|
) | |||||||
PRIDE
OF AMERICA SHIP HOLDING, INC.
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
by Colin Veitch
|
) | |||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
in the presence of:
|
Mark E. Warren | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
COMMERZBANK AKTIENGESELLSCHAFT
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Mark Looi | ||||||
by Mark Looi
|
) | |||||||
for and on behalf of
|
) | |||||||
HSBC BANK PLC
|
) | |||||||
as
the Agent and the Trustee
|
) | |||||||
in the presence of:
|
Marcus Pcumley | ) | ||||||
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HSBC Bank Plc | ) | ||||||
|
Project and Export Finance | ) | ||||||
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Floor 17 | ) | ||||||
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8 Canada Square | ) | ||||||
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London EL14 5HQ | ) |
8
Definition/Clause | Amendment | |
Clause 9.2.21
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Completeness of documents | |
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||
|
The copies of the Building Contract, the Management Agreement, the Sub-Agency Agreement, the Interest Exchange Arrangements, the Hermes Loan Agreement and any other relevant third party agreements delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed other than (if applicable), in the case of the Management Agreement or the Sub-Agency Agreement, in accordance with Clause 10.14 nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | |
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Clause 10.14
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Management | |
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||
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Except with the prior consent of the Agent, the Borrower will not: | |
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||
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(a) permit any person other than the Manager and the Sub-Agent to be the manager and sub-agent of,
including providing crewing services to, the Vessel;
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|
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||
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(b) permit any amendment to be made to the terms of the Management Agreement or the Sub-Agency
Agreement unless an amendment is advised by the Borrowers tax counsel or is deemed necessary by
the parties thereto but provided that the amendment does not imperil the security to be provided
pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its
obligations under the Transaction Documents; or
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||
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(c) permit the Vessel to be employed other than within the NCL or NCL America brand (as applicable). |
9
Definition/Clause | Amendment | |
Clause 11.1.3
|
as at 30 September 2006 and as at the end of each subsequent financial quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**] [Confidential Treatment]. | |
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||
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Amounts available for drawing under any revolving or other credit facilities of the NCLC Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
10
TO:
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HSBC BANK PLC | |
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Project and Export Finance | |
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8 Canada Square | |
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London E14 5HQ | |
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England | |
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Attn: Mr Alan Marshall | |
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(as the Hermes Loan Agent and the Commercial Loan Agent (as each such term is defined in the Guarantee (as hereinafter defined)) |
NCL CORPORATION LTD.
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||
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||
|
||
Chief Financial Officer
|
11
Clause (of | ||||||||
Guarantee) | as of [] | Required Covenants | ||||||
11.1.1/
11.1.2(b)** |
Free Liquidity | A |
A>[**] [Confidential Treatment]
(11.1.1)** A>[**] [Confidential Treatment] (11.1.2(b))** |
|||||
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||||||||
11.1.2(a)
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Consolidated EBITDA: | B | >[**] [Confidential Treatment] | |||||
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||||||||
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Consolidated Debt Service | C | ||||||
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||||||||
11.1.3
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Total Net Funded Debt: | D | <[**] [Confidential Treatment] | |||||
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||||||||
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Total Capitalisation | E |
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Consolidated EBITDA | |||||
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Consolidated Net Income (loss) | x | ||||
(Deduct)/Add:
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(Gain)/Loss on sale of assets or reserves | x | ||||
Add:
|
Consolidated Interest Expense | x | ||||
Add:
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Depreciation and amortisation of assets | x | ||||
Add:
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Impairment charges | x | ||||
(Deduct)/Add:
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Other non-cash charges (gains) | x | ||||
Add:
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Deferred income tax expense | x | ||||
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||||||
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Consolidated EBITDA | x | B | |||
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||||||
|
Consolidated Debt Service | |||||
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Principal paid/payable (excluding balloon payments, voluntary prepayments/repayments on sale/total loss of an NCLC Fleet vessel) | x | ||||
Add:
|
Consolidated Interest Expense | x | ||||
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Distributions | x | ||||
|
Rent under capitalised leases | x | ||||
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||||||
|
Consolidated Debt Service | x | C | |||
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||||||
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Total Net Funded Debt | |||||
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Indebtedness for Borrowed Money | x | ||||
Add:
|
Guarantees of non-NCLC Group members obligations | x | ||||
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||||||
|
x | |||||
|
||||||
|
||||||
Deduct:
|
Cash Balance | (x) | ||||
|
||||||
|
Total Net Funded Debt | (x) | D | |||
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||||||
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Total Capitalisation | |||||
|
Total Net Funded Debt | x | ||||
Add:
|
Consolidated stockholders equity | x | ||||
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||||||
|
Total Capitalisation | x | E | |||
|
12
|
Chief Financial Officer |
||
NCL CORPORATION LTD.
|
** | Evidence satisfactory to the Agent of A at all times during the relevant period shall be provided together with this statement |
13
Page | ||||||
1
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Definitions and Construction | 2 | ||||
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2
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Amendment of Original Facility Agreement, Original Mortgages and other Security Documents | 2 | ||||
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3
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Conditions Precedent | 3 | ||||
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4
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Representations and Warranties | 5 | ||||
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5
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Expenses | 6 | ||||
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6
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Further Assurance | 6 | ||||
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7
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Counterparts | 6 | ||||
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8
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Notices | 6 | ||||
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||||||
9
|
Governing Law | 7 | ||||
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||||||
10
|
Jurisdiction | 7 | ||||
|
||||||
Schedule 1
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Amendment of Original Facility Agreement | 10 | ||||
|
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Schedule 2
|
Amendment of Original Mortgages - m.v.s NORWEGIAN SPIRIT and | 12 | ||||
|
NORWEGIAN STAR | |||||
|
||||||
Schedule 3
|
Amendment of Original Mortgage - m.v. PRIDE OF ALOHA | 13 | ||||
|
||||||
Schedule 4
|
Quarterly Statement of Financial Covenants | 14 |
(1) | NCL CORPORATION LTD. of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as borrower (the Borrower ); | |
(2) | NORWEGIAN SPIRIT, LTD ., a company incorporated under the laws of Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda ( Norwegian Spirit ); | |
(3) | NORWEGIAN STAR LIMITED , a company incorporated under the laws of the Isle of Man and having its registered office at International House, Castle Hill, Victoria Road, Douglas, Isle of Man IM2 4RB, British Isles ( Norwegian Star ); | |
(4) | PRIDE OF ALOHA, INC. , a corporation organised under the laws of the State of Delaware, United States of America and having its registered office at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, United States of America Pride of Aloha and together with Norwegian Spirit and Norwegian Star the Guarantors ); and | |
(5) | DnB NOR BANK ASA of Stranden 21, NO-0021 Oslo, Norway as agent for itself and the Lenders (the Agent ). |
(A) | By a secured loan facility agreement dated 7 July 2004 as amended by a first supplemental deed thereto dated as of 30 September 2005 (the Original Facility Agreement ) made between (among others) (1) the Borrower as borrower (2) the banks whose names and Lending Branches appear in schedule 1 to the Facility Agreement as lenders (the Lenders ) and (3) the Agent, the Lenders agreed to make available to the Borrower a loan facility of up to eight hundred million Dollars (USD800,000,000) (the Facility ). The repayment of the Facility by the Borrower has been secured by (among other things) guarantees and indemnities dated 16 July 2004 granted by the Guarantors each as amended by the said first supplemental deed dated as of 30 September 2005 and mortgages dated 16 July 2004 granted by the Guarantors respectively over m.v.s NORWEGIAN SPIRIT, NORWEGIAN STAR and PRIDE OF ALOHA each as amended by the said first supplemental deed dated as of 30 September 2005 (the Original Mortgages ). | |
(B) | The Borrower has requested the consent of the Lenders and the Agent to the amendment of certain provisions of the Original Facility Agreement and the Original Mortgages to conform such provisions to similar provisions in other loan documentation to which the Borrower and/or other members of the NCLC Group are party. This Deed shall be executed as a deed. |
1 | Definitions and Construction |
1.1 | In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Facility Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have the meanings set out below: | ||
Facility Agreement means the Original Facility Agreement as amended by this Deed; and | |||
Mortgage means an Original Mortgage as amended by this Deed. | |||
1.2 | The provisions of Clauses 1.2 and 1.3 of the Facility Agreement shall apply hereto (mutatis mutandis). |
2 | Amendment of Original Facility Agreement, Original Mortgages and other Security Documents |
2.1 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Facility Agreement shall be read and construed as if: |
2.1.1 | the clauses referred to in the first column of Schedule 1 had been amended to read as set out in the second column of Schedule 1; and | ||
2.1.2 | schedule 6 had been deleted and substituted with Schedule 4. |
2.2 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the deeds of covenants forming part of the Original Mortgages granted by Norwegian Spirit and Norwegian Star over their Vessels shall be read and construed as if the clause referred to in the first column of Schedule 2 had been amended to read as set out in the second column of Schedule 2. | ||
2.3 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Mortgage granted by Pride of Aloha over its Vessel shall be read and construed as if the clause referred to in the first column of Schedule 3 had been amended to read as set out in the second column of Schedule 3. | ||
2.4 | The Borrower and each of the Guarantors hereby confirms to the Agent that with effect from the date of this Deed: |
2.4.1 | all references to the Original Facility Agreement in the Security Documents to which it is a party shall be construed as references to the Facility Agreement and all terms used in such Security Documents whose meanings are defined by reference to the Original Facility Agreement shall be defined by reference to the Facility Agreement; | ||
2.4.2 | the Security Documents to which it is a party shall apply to, and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Facility Agreement; | ||
2.4.3 | its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the |
2
execution of this Deed or of any of the documents or transactions contemplated hereby; and | |||
2.4.4 | its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Facility Agreement and the other Security Documents as amended by this Deed. |
2.5 | Except as expressly amended hereby or pursuant hereto the Original Facility Agreement and the Security Documents shall remain in full force and effect and nothing herein contained shall relieve the Borrower or any other Obligor from any of its respective obligations under any such documents. |
3 | Conditions Precedent |
3.1 | The consent of the Agent for itself and on behalf of the Lenders to the variation of the provisions of the Original Facility Agreement and the Original Mortgages is conditional upon and shall not be effective unless and until the Agent has received the following in form and substance satisfactory to it: |
3.1.1 | on the date of this Deed, one (1) counterpart of this Deed duly executed by the Borrower and the Guarantors; | ||
3.1.2 | a written confirmation from the Process Agent that it will act for the Borrower and the Guarantors as agent for service of process in England in respect of this Deed; | ||
3.1.3 | the following corporate documents in respect of each of the Borrower and the Guarantors (together the Relevant Parties ): |
(a) | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant Party of its obligations under this Deed or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required; | ||
(b) | notarially attested secretarys certificate of each of the Relevant Parties: |
(i) | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) evidencing power to enter into the transactions contemplated in this Deed; | ||
(ii) | giving the names of its present officers and directors; | ||
(iii) | setting out specimen signatures of such officers and directors as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant Partys obligations under this Deed; |
3
(iv) | giving the legal owner of its shares and the number of such shares held; | ||
(v) | attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed, in the case of Pride of Aloha, the second amendment to the Original Mortgage over m.v. PRIDE OF ALOHA and the issue of any power of attorney to execute the same; and | ||
(vi) | containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party; |
or (if applicable) certifying that there has been no change to the statements made in his or her secretarys certificate last provided to the Agent with respect to paragraphs (b)(i), (ii), (iii), (iv) and (vi) of this Clause 3.1.3(b) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed, in the case of Pride of Aloha, the second amendment to the Original Mortgage over m.v. PRIDE OF ALOHA and the issue of any power of attorney to execute the same; |
3.1.4 | the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested; | ||
3.1.5 | a second amendment to the Mortgage over m.v. PRIDE OF ALOHA duly executed and lodged for recordation at the United States Coast Guard National Vessel Documentation Center; | ||
3.1.6 | a Certified Copy of each of the following: |
(a) | letters from each of the Guarantors to the relevant Manager in respect of its Vessel; and | ||
(b) | a letter from the relevant Manager to the Sub-Agent in the case of m.v. PRIDE OF ALOHA, |
notifying of the provisions of clause 6.1.15(c) of the two (2) deeds of covenants collateral to the two (2) first priority statutory Bahamian ship mortgages granted by each of Norwegian Spirit and Norwegian Star over its Vessel or clause 5.5.15(c) of the first preferred US ship mortgage granted by Pride of Aloha over its Vessel (as applicable); and |
(c) | the issue of such favourable written legal opinions including in respect of the United States of America, Delaware, Bermuda and the Isle of Man in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, |
4
PROVIDED THAT no Event of Default and (save as disclosed in writing to the Agent before the date of this Deed) no Possible Event of Default has occurred and is continuing on the date on which the conditions precedent set out in this Clause 3.1 have been satisfied (subject to Clause 3.2). | |||
3.2 | If the Agent in accordance with clause 22 of the Original Facility Agreement decides to permit the amendment of the Original Facility Agreement and the Original Mortgages hereby without having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen (14) days of the date of this Deed (or such other period as the Agent may stipulate) and the amendment of the Original Facility Agreement and the Original Mortgages as aforesaid shall not be construed as a waiver of the Agents right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent or the Lenders any obligation to permit the amendment in the absence of such documents or evidence. |
4 | Representations and Warranties |
4.1 | The Borrower and each of the Guarantors represents and warrants to the Agent that: |
4.1.1 | it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry into and performance of this Deed and such transactions and documents; | ||
4.1.2 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
4.1.3 | its entry into and performance of this Deed and the transactions contemplated hereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Agent; | |||
4.1.4 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect; |
5
4.1.5 | all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and | ||
4.1.6 | it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to influence the Agent in deciding whether or not to enter into this Deed. |
5 | Expenses | |
The Borrower and the Guarantors jointly and severally undertake to reimburse the Agent on demand on a full indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent in respect of the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed. | ||
6 | Further Assurance | |
The Borrower and each of the Guarantors will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent as the Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Agent the full benefit of the rights, powers and remedies conferred upon the Agent in any such document. | ||
7 | Counterparts | |
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. | ||
8 | Notices |
8.1 | Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower or the Guarantors pursuant to this Deed shall (unless the Borrower or a Guarantor has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantors c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department (but one (1) copy shall suffice)) with a copy to c/o Star Cruises Limited, Star Cruises Terminal, Pulau Indah, PO Box No. 288, 42009 Pelabuhan Klang, Selangor Darul Ehsan, Malaysia (marked for the attention of Mr Gerard Lim). Any notice, demand or other communication to be made or delivered by the Borrower or a Guarantor pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Borrower and the Guarantor specified another address) be made or delivered to the Agent at its Office, the details of which are set out in schedule 1 of the Original Facility Agreement. |
6
8.2 | Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Borrower and the Guarantors is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to +60 3 3884 0213 (marked for the attention of Mr Gerard Lim) and in the case of the Agent is as recorded in schedule 1 of the Original Facility Agreement) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent by the Borrower or a Guarantor, shall be signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent to the Borrower and the Guarantor. | ||
8.3 | The provisions of clauses 23.1, 23.5 and 23.6 of the Original Facility Agreement shall apply to this Deed. |
9 | Governing Law | |
This Deed shall be governed by English law. | ||
10 | Jurisdiction |
10.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 10.1 is for the benefit of the Agent only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions. | |||
10.2 | Neither the Borrower nor the Guarantors may, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantors (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Borrowers and/or the Guarantors (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantors of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
10.3 | For the purpose of securing its obligations under Clause 10.2, the Borrower and each of the Guarantors irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrowers or that Guarantors (as the case may be) |
7
process agent in England with the unconditional authority described in Clause 10.2. | |||
10.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantors (as the case may be) of the service of any process or to forward any process to the Borrower or the Guarantors (as the case may be)) shall invalidate any proceedings or judgment. | ||
10.5 | The Borrower and each of the Guarantors appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. | ||
10.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantors (as the case may be) and may be enforced without review in any other jurisdiction. | ||
10.7 | Nothing in this Clause shall exclude or limit any right which the Agent may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | ||
10.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
by Colin Veitch
|
) | |||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
in the presence of:
|
Mark E. Warren | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Vijay Jeyaratnam | ||||||
by
Vijay Jeyaratnam
|
) | |||||||
for and on behalf of
|
) | |||||||
NORWEGIAN
SPIRIT LTD.
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London, EC4M 8SH | ) | ||||||
|
8
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Vijay Jeyaratnam | ||||||
by Vijay Jeyaratnam
|
) | |||||||
for and on behalf of
|
) | |||||||
NORWEGIAN STAR LIMITED
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Vijay Jeyaratnam | ||||||
by Vijay Jeyaratnam
|
) | |||||||
for and on behalf of
|
) | |||||||
PRIDE OF ALOHA, INC.
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
DnB NOR BANK ASA
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
9
Definition/Clause | Amendment | |
Clause 10.2.21
|
Completeness of documents The copies of the MOA, the Management Agreements, the Sub-Agency Agreement and any other relevant third party agreements delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed other than (if applicable), in the case of the Management Agreements and the Sub-Agency Agreement, in accordance with clause 6.1.15 of the two (2) deeds of covenants collateral to the two (2) first priority statutory Bahamian ship mortgages granted by each of Norwegian Spirit and Norwegian Star over its Vessel or clause 5.5.15 of the first preferred US ship mortgage granted by Pride of Aloha over its Vessel nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | |
|
||
Clause 11.2.1(e)
|
within fifteen (15) days of a request from the Agent (but at intervals no more frequently than annually at the Borrowers expense unless an Event of Default has occurred and is continuing), a valuation of each of the Vessels obtained in accordance with the provisions of Clause 11.17; | |
|
||
Clause 11.3.3
|
as at 30 September 2006 and as at the end of each subsequent financial quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**] [Confidential Treatment]. | |
|
||
|
Amounts available for drawing under the Facility or any other revolving or other credit facilities of the NCLC Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
10
Definition/Clause | Amendment | |
Clause 11.17.1
|
Each of the Vessels shall for the purposes of this Clause 11.17 be valued in Dollars by two (2) independent firms of shipbrokers or shipvaluers nominated by the Borrower and approved by the Agent (acting on the instructions of the Majority Lenders) or failing such nomination and approval, appointed by the Agent (acting on such instructions) in its sole discretion (each such valuation to be made without, unless reasonably required by the Agent, physical inspection and on the basis of a sale for prompt delivery for cash at arms length on normal commercial terms as between a willing buyer and a willing seller without taking into account the benefit of any charterparty or other engagement concerning the Vessel). Such valuations shall be obtained within fifteen (15) days of a request from the Agent but no more frequently than annually at the Borrowers expense (unless an Event of Default has occurred and is continuing) PROVIDED HOWEVER that if the Borrower has requested the drawdown of the Term Loan Facility or the advance of a Drawing pursuant to Clause 2.3 and, at such time, such valuations are more than ninety (90) days old, the Borrower shall, upon the Agents request and at the Borrowers additional expense, obtain new valuations at that time. The average of the valuations shall constitute the value of the Vessel for the purposes of this Clause 11.17. |
11
Definition/Clause | Amendment | |
Clause 6.1.15
|
except with the prior consent of the Mortgagee, not: | |
|
||
|
(a) permit any person other than the relevant Manager to be the manager of, including providing
crewing services to, the Vessel;
|
|
|
||
|
(b) permit any amendment to be made to the terms of the management agreement in respect of the
Vessel unless the amendment is advised by the Owners tax counsel or is deemed necessary by the
parties thereto but provided that the amendment does not imperil the security to be provided
pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its
obligations under the Transaction Documents; or
|
|
|
||
|
(c) permit the Vessel to be employed other than within the NCL or NCL America brand (as
applicable).
|
12
Definition/Clause | Amendment | |
Clause 5.5.15
|
except with the prior consent of the Mortgagee, not: | |
|
||
|
(a) permit any person other than the relevant Manager and the Sub-Agent to be the managers of,
including providing crewing services to, the Vessel;
|
|
|
||
|
(b) permit any amendment to be made to the terms of the Management Agreement or the Sub-Agency
Agreement unless the amendment is advised by the Owners tax counsel or is deemed necessary by the
parties thereto but provided that the amendment does not imperil the security to be provided
pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its
obligations under the Transaction Documents; or
|
|
|
||
|
(c) permit the Vessel to be employed other than within the NCL or NCL America brand (as
applicable).
|
13
TO: |
DnB NOR BANK ASA
Stranden 21 NO-0021 Oslo Norway Attn : Mr Jon Flovik |
14
Clause (of | ||||||
Facility | ||||||
Agreement) | as of [ ] | Required Covenants | ||||
11.3.1/
|
Free Liquidity | A | A>[**] [Confidential Treatment] | |||
11.3.2(b)**
|
(11.3.1)** | |||||
|
||||||
|
A>[**] [Confidential Treatment] | |||||
|
(11.3.2(b))** | |||||
|
||||||
11.3.2(a)
|
Consolidated EBITDA: | B | >[**] [Confidential Treatment] | |||
|
||||||
|
Consolidated Debt Service | C | ||||
|
||||||
11.3.3
|
Total Net Funded Debt: | D | <[**] [Confidential Treatment] | |||
|
||||||
|
Total Capitalisation | E |
|
Consolidated EBITDA | |||||||
|
Consolidated Net Income (loss) | x | ||||||
(Deduct)/Add:
|
(Gain)/Loss on sale of assets or reserves | x | ||||||
Add:
|
Consolidated Interest Expense | x | ||||||
Add:
|
Depreciation and amortisation of assets | x | ||||||
Add:
|
Impairment charges | x | ||||||
(Deduct)/Add:
|
Other non-cash charges (gains) | x | ||||||
Add:
|
Deferred income tax expense | x | ||||||
|
||||||||
|
Consolidated EBITDA | x | B | |||||
|
||||||||
|
Consolidated Debt Service | |||||||
|
Principal paid/payable (excluding balloon payments, voluntary | x | ||||||
|
prepayments/repayments on sale/total loss of an NCLC Fleet | |||||||
|
vessel) | |||||||
Add:
|
Consolidated Interest Expense | x | ||||||
|
Distributions | x | ||||||
|
Rent under capitalised leases | x | ||||||
|
||||||||
|
Consolidated Debt Service | x | C | |||||
|
||||||||
|
Total Net Funded Debt | |||||||
|
Indebtedness for Borrowed Money | x | ||||||
Add:
|
Guarantees of non-NCLC Group members' obligations | x | ||||||
|
||||||||
|
x | |||||||
|
||||||||
Deduct:
|
Cash Balance | (x | ) | |||||
|
||||||||
|
Total Net Funded Debt | (x | ) | D | ||||
|
||||||||
|
Total Capitalisation | |||||||
|
Total Net Funded Debt | x | ||||||
Add:
|
Consolidated stockholders' equity | x | ||||||
|
||||||||
|
Total Capitalisation | x | E | |||||
|
15
** | Evidence satisfactory to the Agent of A at all times during the relevant period shall be provided together with this statement |
16
Page | ||||||
1
|
Definitions and Construction | 1 | ||||
|
||||||
2
|
Amendment of Original Facility Agreement, Original Mortgage and other Security Documents | 2 | ||||
|
||||||
3
|
Conditions Precedent | 2 | ||||
|
||||||
4
|
Representations and Warranties | 4 | ||||
|
||||||
5
|
Expenses | 5 | ||||
|
||||||
6
|
Further Assurance | 5 | ||||
|
||||||
7
|
Counterparts | 5 | ||||
|
||||||
8
|
Notices | 5 | ||||
|
||||||
9
|
Governing Law | 6 | ||||
|
||||||
10
|
Jurisdiction | 6 | ||||
|
||||||
Schedule 1
|
Amendment of Original Facility Agreement | 9 | ||||
|
||||||
Schedule 2
|
Amendment of Original Mortgage | 10 | ||||
|
||||||
Schedule 3
|
Quarterly Statement of Financial Covenants | 11 |
(1) | NCL CORPORATION LTD. of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as indemnifier (the Indemnifier ); | |
(2) | NORWEGIAN SUN LIMITED of Canons Court, 22 Victoria Street, Hamilton HM 12, Bermuda as owner (the Owner ); and | |
(3) | DnB NOR BANK ASA of Stranden 21, NO-0021 Oslo, Norway as agent for itself and the Issuers (the Agent ). |
(A) | By a letters of credit facility agreement dated 23 September 2005 (the Original Facility Agreement ) made between (among others) (1) the Indemnifier as indemnifier (2) the banks whose names and particulars appear in appendix A to the Facility Agreement as issuers (the Issuers ) and (3) the Agent, the Issuers agreed to issue in favour of Chase Merchant Services, LLC letters of credit in the aggregate maximum amount of one hundred million Dollars (USD100,000,000). The repayment of the Indebtedness by the Indemnifier has been secured by (among other things) a second priority Bahamian statutory mortgage dated 23 September 2005 granted by the Owner over m.v. NORWEGIAN SUN (the Original Mortgage ). | |
(B) | The Indemnifier has requested the consent of the Issuers and the Agent to the amendment of certain provisions of the Original Facility Agreement and the Original Mortgage to conform such provisions to similar provisions in other loan documentation to which the Indemnifier and/or other members of the NCLC Group are party. This Deed shall be executed as a deed. |
1 | Definitions and Construction |
1.1 | In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Facility Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have the meanings set out below: | ||
Facility Agreement means the Original Facility Agreement as amended by this Deed; and | |||
Mortgage means the Original Mortgage as amended by this Deed. | |||
1.2 | The provisions of Clauses 1.2 and 1.3 of the Facility Agreement shall apply hereto (mutatis mutandis). |
2 | Amendment of Original Facility Agreement, Original Mortgage and other Security Documents |
2.1 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Facility Agreement shall be read and construed as if: |
2.1.1 | the clauses referred to in the first column of Schedule 1 had been amended to read as set out in the second column of Schedule 1; and | ||
2.1.2 | appendix D had been deleted and substituted with Schedule 3. |
2.2 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the deed of covenants forming part of the Original Mortgage shall be read and construed as if the clause referred to in the first column of Schedule 2 had been amended to read as set out in the second column of Schedule 2. |
2.3 | The Indemnifier and the Owner hereby confirms to the Agent that with effect from the date of this Deed: |
2.3.1 | all references to the Original Facility Agreement in the Security Documents to which it is a party shall be construed as references to the Facility Agreement and all terms used in such Security Documents whose meanings are defined by reference to the Original Facility Agreement shall be defined by reference to the Facility Agreement; | ||
2.3.2 | the Security Documents to which it is a party shall apply to, and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Facility Agreement; | ||
2.3.3 | its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby; and | ||
2.3.4 | its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Indemnifier under the Facility Agreement and the other Security Documents as amended by this Deed. |
2.4 | Except as expressly amended hereby or pursuant hereto the Original Facility Agreement and the Security Documents shall remain in full force and effect and nothing herein contained shall relieve the Indemnifier or any other Obligor from any of its respective obligations under any such documents. |
3 | Conditions Precedent |
3.1 | The consent of the Agent for itself and on behalf of the Issuers to the variation of the provisions of the Original Facility Agreement and the Original Mortgage is conditional upon and shall not be effective unless and until the Agent has received the following in form and substance satisfactory to it: |
3.1.1 | on the date of this Deed, one (1) counterpart of this Deed duly executed by the Indemnifier and the Owner; |
2
3.1.2 | a written confirmation from the Process Agent that it will act for the Indemnifier and the Owner as agent for service of process in England in respect of this Deed; | ||
3.1.3 | the following corporate documents in respect of each of the Indemnifier and the Owner (together the Relevant Parties ): |
(a) | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant Party of its obligations under this Deed or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required; | ||
(b) | notarially attested secretarys certificate of each of the Relevant Parties: |
(i) | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) evidencing power to enter into the transactions contemplated in this Deed; | ||
(ii) | giving the names of its present officers and directors; | ||
(iii) | setting out specimen signatures of such officers and directors as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant Partys obligations under this Deed; | ||
(iv) | giving the legal owner of its shares and the number of such shares held; | ||
(v) | attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and | ||
(vi) | containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party; |
or (if applicable) certifying that there has been no change to the statements made in his or her secretarys certificate last provided to the Agent with respect to paragraphs (b)(i), (ii), (iii), (iv) and (vi) of this Clause 3.1.3(b) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; |
3
3.1.4 | the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested; | ||
3.1.5 | a Certified Copy of a letter from the Owner to the Managers notifying of the provisions of clause 6.1.17(c) of the Mortgage; and | ||
3.1.6 | the issue of such favourable written legal opinions including in respect of Bermuda in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, |
PROVIDED THAT no Event of Default and (save as disclosed in writing to the Agent before the date of this Deed) no Possible Event of Default has occurred and is continuing on the date on which the conditions precedent set out in this Clause 3.1 have been satisfied (subject to Clause 3.2). | |||
3.2 | If the Agent in accordance with clause 14 of the Original Facility Agreement decides to permit the amendment of the Original Facility Agreement and the Original Mortgage hereby without having received all of the documents or evidence referred to in Clause 3.1, the Indemnifier will nevertheless deliver the remaining documents or evidence to the Agent within fourteen (14) days of the date of this Deed (or such other period as the Agent may stipulate) and the amendment of the Original Facility Agreement and the Original Mortgage as aforesaid shall not be construed as a waiver of the Agents right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent or the Issuers any obligation to permit the amendment in the absence of such documents or evidence. |
4 | Representations and Warranties |
4.1 | Each of the Indemnifier and the Owner represents and warrants to the Agent that: |
4.1.1 | it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry into and performance of this Deed and such transactions and documents; | ||
4.1.2 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
4.1.3 | its entry into and performance of this Deed and the transactions contemplated hereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents |
4
contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Agent; | |||
4.1.4 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect; | ||
4.1.5 | all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and | ||
4.1.6 | it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to influence the Agent in deciding whether or not to enter into this Deed. |
5 | Expenses | |
The Indemnifier and the Owner jointly and severally undertake to reimburse the Agent on demand on a full indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent in respect of the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed. | ||
6 | Further Assurance | |
The Indemnifier and the Owner will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent as the Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Agent the full benefit of the rights, powers and remedies conferred upon the Agent in any such document. | ||
7 | Counterparts | |
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. | ||
8 | Notices |
8.1 | Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Indemnifier or the Owner pursuant to this Deed shall (unless the Indemnifier or the Owner has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Indemnifier and/or the Owner c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department |
5
(but one (1) copy shall suffice)) with a copy to c/o Sun Cruises Limited, Sun Cruises Terminal, Pulau Indah, PO Box No. 288, 42009 Pelabuhan Klang, Selangor Darul Ehsan, Malaysia (marked for the attention of Mr Gerard Lim). Any notice, demand or other communication to be made or delivered by the Indemnifier or the Owner pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Indemnifier and the Owner specified another address) be made or delivered to the Agent at its Office, the details of which are set out in schedule 1 of the Original Facility Agreement. | |||
8.2 | Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Indemnifier and the Owner is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to +60 3 3884 0213 (marked for the attention of Mr Gerard Lim) and in the case of the Agent is as recorded in schedule 1 of the Original Facility Agreement) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent by the Indemnifier or the Owner, shall be signed by the person or persons authorised in writing by the Indemnifier or the Owner (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent to the Indemnifier and the Owner. | ||
8.3 | The provisions of clauses 23.1, 23.5 and 23.6 of the Original Facility Agreement shall apply to this Deed. |
9 | Governing Law | |
This Deed shall be governed by English law. | ||
10 | Jurisdiction |
10.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 10.1 is for the benefit of the Agent only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions. | |||
10.2 | Neither the Indemnifier nor the Owner may, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Indemnifier and/or the Owner (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Indemnifiers and/or the Owner (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the |
6
Indemnifier and/or the Owner of all process or other documents connected with proceedings in the English courts which relate to this Deed. | |||
10.3 | For the purpose of securing its obligations under Clause 10.2, the Indemnifier and each of the Owner irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Indemnifiers or the Owners (as the case may be) process agent in England with the unconditional authority described in Clause 10.2. | ||
10.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Indemnifier or the Owner (as the case may be) of the service of any process or to forward any process to the Indemnifier or the Owner (as the case may be)) shall invalidate any proceedings or judgment. | ||
10.5 | The Indemnifier and the Owner appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. | ||
10.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Indemnifier and/or the Owner (as the case may be) and may be enforced without review in any other jurisdiction. | ||
10.7 | Nothing in this Clause shall exclude or limit any right which the Agent may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | ||
10.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
by Colin Veitch
|
) | |||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
in the presence of:
|
Mark E. Warren |
7
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Vijay Jeyaratnam | ||||||
by Vijay Jeyaratnam
|
) | |||||||
for and on behalf of
|
) | |||||||
NORWEGIAN
SUN LIMITED
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London, EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by
Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
DnB
NOR BANK ASA
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London, EC4M 8SH | ) | ||||||
|
8
Definition/Clause | Amendment | |
Clause 10.2.21
|
Completeness of documents The copies of the Transaction Documents and any other relevant third party agreements delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed other than (if applicable), in the case of the management agreement between the Owner and the Managers in respect of the Vessel, in accordance with clause 6.1.17 of the deed of covenants collateral to the second priority statutory Bahamian ship mortgage granted by the Owner over the Vessel nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | |
|
||
Clause 11.3.3
|
as at 30 September 2006 and as at the end of each subsequent financial quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**] [Confidential Treatment]. | |
|
||
|
Amounts available for drawing under any revolving or other credit facilities of the NCLC Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
9
Definition/Clause | Amendment | |
Clause 6.1.17
|
except with the prior consent of the Mortgagees, not: | |
|
||
|
(a) permit any person other than the Manager to be the manager of, including providing crewing
services to, the Vessel;
|
|
|
||
|
(b) permit any amendment to be made to the terms of the management agreement with the Managers in
respect of the Vessel unless the amendment is advised by the Owners tax counsel or is deemed
necessary by the parties thereto but provided that the amendment does not imperil the security to
be provided pursuant to the Security Documents or adversely affect the ability of any Security
Party to perform its obligations under the Transaction Documents; or
|
|
|
||
|
(c) permit the Vessel to be employed other than within the NCL or NCL America brand (as
applicable).
|
10
TO: |
DnB NOR BANK ASA
Stranden 21 NO-0021 Oslo Norway Attn : Mr Jon Flovik |
11
Clause (of | ||||||
Facility | ||||||
Agreement) | as of [ ] | Required Covenants | ||||
9.24.1/
|
Free Liquidity | A | A>[**] [Confidential Treatment] | |||
9.24.2(b)**
|
(11.3.1)** | |||||
|
||||||
|
A>[**] [Confidential Treatment] | |||||
|
(11.3.2(b))** | |||||
|
||||||
9.24.2(a)
|
Consolidated EBITDA: | B | >[**] [Confidential Treatment] | |||
|
||||||
|
Consolidated Debt Service | C | ||||
|
||||||
9.24.3
|
Total Net Funded Debt: | D | <[**] [Confidential Treatment] | |||
|
||||||
|
Total Capitalisation | E |
|
Consolidated EBITDA | |||||||
|
Consolidated Net Income (loss) | x | ||||||
(Deduct)/Add:
|
(Gain)/Loss on sale of assets or reserves | x | ||||||
Add:
|
Consolidated Interest Expense | x | ||||||
Add:
|
Depreciation and amortisation of assets | x | ||||||
Add:
|
Impairment charges | x | ||||||
(Deduct)/Add:
|
Other non-cash charges (gains) | x | ||||||
Add:
|
Deferred income tax expense | x | ||||||
|
||||||||
|
Consolidated EBITDA | x | B | |||||
|
||||||||
|
Consolidated Debt Service | |||||||
|
Principal paid/payable (excluding balloon payments, voluntary | x | ||||||
|
prepayments/repayments on sale/total loss of an NCLC Fleet | |||||||
|
vessel) | |||||||
Add:
|
Consolidated Interest Expense | x | ||||||
|
Distributions | x | ||||||
|
Rent under capitalised leases | x | ||||||
|
||||||||
|
Consolidated Debt Service | x | C | |||||
|
||||||||
|
Total Net Funded Debt | |||||||
|
Indebtedness for Borrowed Money | x | ||||||
Add:
|
Guarantees of non-NCLC Group members obligations | x | ||||||
|
||||||||
|
x | |||||||
|
||||||||
Deduct:
|
Cash Balance | (x | ) | |||||
|
||||||||
|
Total Net Funded Debt | (x | ) | D | ||||
|
||||||||
|
Total Capitalisation | |||||||
|
Total Net Funded Debt | x | ||||||
Add:
|
Consolidated stockholders equity | x | ||||||
|
||||||||
|
Total Capitalisation | x | E | |||||
|
12
** | Evidence satisfactory to the Agent of A at all times during the relevant period shall be provided together with this statement |
13
Page | ||||||
1
|
Definitions and Construction | 1 | ||||
|
||||||
2
|
Amendment of Original Loan Agreement and Security Documents | 2 | ||||
|
||||||
3
|
Conversion | 4 | ||||
|
||||||
4
|
Conditions Precedent | 5 | ||||
|
||||||
5
|
Representations and Warranties | 6 | ||||
|
||||||
6
|
Expenses | 7 | ||||
|
||||||
7
|
Further Assurance | 8 | ||||
|
||||||
8
|
Counterparts | 8 | ||||
|
||||||
9
|
Notices | 8 | ||||
|
||||||
10
|
Governing Law | 9 | ||||
|
||||||
11
|
Jurisdiction | 9 | ||||
|
||||||
Schedule 1
|
The Lenders | 13 |
(1) | NORWEGIAN JEWEL LIMITED of International House, Castle Hill, Victoria Road, Douglas, Isle of Man, British Isles as borrower (the Borrower ); | |
(2) | NCL CORPORATION LTD. of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the Guarantor ); | |
(3) | THE SEVERAL BANKS particulars of which are set out in Schedule 1 as lenders (collectively the Lenders and each individually a Lender ); | |
(4) | HSBC BANK PLC of 8 Canada Square, London E14 5HQ as agent (the Agent ); | |
(5) | COMMERZBANK AKTIENGESELLSCHAFT of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the Hermes Agent ); and | |
(6) | HSBC BANK PLC of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the Trustee ). |
(A) | By a loan agreement dated 20 April 2004 as amended and supplemented by a first supplemental deed dated as of 30 September 2005 (the Original Loan Agreement ) entered into between the Borrower as borrower, the Lenders as lenders, the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders, the Lenders granted to the Borrower a secured loan in the maximum amount of three hundred and thirty four million and fifty thousand Dollars (USD334,050,000) (the Loan ) for the purpose of enabling the Borrower to finance (among other things) the construction of the Vessel (as such term is defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured by (among other things) a guarantee and indemnity dated 20 April 2004 granted by the Guarantor. | |
(B) | The Guarantor has requested the consent of the Lenders, the Agent, the Hermes Agent and the Trustee to the amendment of certain of the provisions of the Original Loan Agreement which relate to an election by the Borrower for a Fixed Rate. | |
(C) | This Deed shall be executed as a deed. |
1 | Definitions and Construction |
1.1 | In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Loan Agreement shall have the meanings set out therein except that terms and expressions used in Clause 2.2 and not defined herein but whose meanings are defined in the Debenture (as |
amended by this Deed) shall have the meanings set out therein. In addition, the following term and expression shall have the meaning set out below: | |||
Loan Agreement means the Original Loan Agreement as amended by this Deed. | |||
1.2 | The provisions of Clauses 1.2 and 1.3 of the Loan Agreement shall apply hereto (mutatis mutandis). |
2 | Amendment of Original Loan Agreement and Security Documents |
2.1 | Subject to Clause 4, the parties hereto agree that from the date of this Deed the Original Loan Agreement shall be read and construed as if: |
2.1.1 | clause 5.3.2 had been deleted and substituted with the following: |
5.3.2 | Subject to the consent of Hermes and of each of the Lenders remaining in full force and effect on the date of the Election Notice (as hereinafter defined), the Borrower may, if no Event of Default has occurred and is continuing and no Total Loss has occurred, at any time prior to 29 September 2006, elect to convert the basis upon which interest is calculated hereunder by giving notice (an Election Notice ) to the Agent not less than fifteen (15) Business Days (or such shorter time as the parties may agree) before the date on which the Interest Exchange Arrangements are to be entered into (the Election Date ) to request that with effect from a date on or prior to 29 September 2006 (the Conversion Date ) the rate of interest applicable to the Loan then outstanding shall be the Fixed Rate. ; and |
2.1.2 | the second paragraph of clause 5.6 had been deleted and substituted with the following: | ||
If it is necessary for the Lenders to break deposits or re-employ funds taken or borrowed to make or maintain such Lenders Contribution to the Portions in order for Conversion to take place on the Conversion Date, the Borrower shall pay to the Agent for the account of the Lenders interest accrued to but excluding the Conversion Date together with such amount as the Agent may certify to be necessary to compensate a Lender for any losses incurred as a consequence of the Pre-Delivery Interest Period(s) in respect of the Portions or the Interest Period in respect of the Loan (as the case may be) being prematurely terminated in order to allow Conversion to occur on the Conversion Date including, without limitation, any loss (including the cost of breaking deposits (including warehousing and other related costs)) or expense (including warehousing and other related costs) on account of funds borrowed, contracted for or utilised to fund such Lenders Contribution to the Loan. . |
2.2 | The parties hereto agree that from the date of this Deed the Debenture shall be read and construed as if: |
2.2.1 | the definition of Outstanding Indebtedness in clause 1.2 thereof had been deleted and substituted with the following: |
2
Outstanding Indebtedness means all sums of any kind arising at any time for any reason payable actually or contingently by the Obligors to any of the Beneficiaries under or pursuant to the Loan Agreement and the other Transaction Documents to which the Obligors are a party (whether by way of repayment of principal, payment of interest or default interest, payment upon any indemnity or counter-indemnity, reimbursement for costs or otherwise howsoever); ; and | |||
2.2.2 | the first paragraph of clause 3.1 thereof had been deleted and substituted with the following: |
3.1 | As continuing security for all obligations whatsoever of the Company, actual or contingent, present and future and whether of payment or performance under or pursuant to the Loan Agreement and the other Transaction Documents to which the Obligors are a party, the Company with full title guarantee hereby: ; |
and to the extent that the Debenture as amended by this Deed does not provide continuing security for all obligations whatsoever of the Borrower, actual or contingent, present and future and whether of payment or performance under or pursuant to the Loan Agreement and the other Transaction Documents to which the Obligors are a party the Borrower with full title guarantee hereby: |
(a) | conveys, transfers and assigns absolutely to and unto the Trustee all rights of the Borrower in and to the Current Receivables by way of fixed security; | ||
(b) | mortgages, charges and assigns, and agrees to mortgage, charge and assign to the Trustee all present and future rights of the Borrower in and to all freehold or leasehold property of the Borrower and all other estates or interests therein together with all trade fixtures and fixed plant and machinery now and for the time being thereon, by way of a fixed charge; | ||
(c) | mortgages, charges and assigns, and agrees to mortgage, charge and assign, to the Trustee all rights now owned or hereafter acquired in and to the goodwill, franchises, patent rights, copyrights, trademarks and other intangible assets of the Borrower by way of fixed charge; | ||
(d) | mortgages, charges and assigns, and agrees to mortgage, charge and assign, to the Trustee all rights relating to the aforesaid property specified in Clauses 2.2.2(b) and (c) including, inter alia, negotiable instruments, legal and equitable charges, reservations of property rights, rights of action, collection, recovery or security, rights of tracing and unpaid vendors liens and similar and associated rights, by way of first fixed legal mortgage and charge; and | ||
(e) | mortgages and charges in favour of the Trustee all rights of the Borrower now owned or hereafter acquired in and to all other assets for the time being of the Borrower not subject to the fixed securities created by Clauses 2.2.2(a), (b), (c) and (d) wheresoever situate (including, inter alia, all undertakings and businesses of the Borrower) by way of first floating charge and the Borrower shall not be at liberty to create any other mortgage or charge on any of the securities created by this Clause 2.2.2(e) |
3
and no lien shall in any case or in any manner arise on or affect any part of the said securities in priority to or pari passu with all charges hereby created, it being the intention that the Borrower shall have no power, without the written consent of the Agent, to part with or dispose of any part of the said securities except by way of sale in the ordinary course of its business; |
PROVIDED THAT upon the unconditional payment and satisfaction of the Outstanding Indebtedness the rights of the Trustee under this Clause 2.2 will terminate and the Trustee will at the direction, cost and expense of the Borrower release or reassign to the Borrower all remaining rights of the Trustee in and to the balance of the Security Assets. | |||
2.3 | Each of the Borrower and the Guarantor hereby confirms to the Lenders, the Agent, the Hermes Agent and the Trustee that with effect from the date of this Deed: |
2.3.1 | all references to the Original Loan Agreement in the Security Documents to which it is a party shall be construed as references to the Loan Agreement and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement; | ||
2.3.2 | the Security Documents to which it is a party shall continue to apply to, and extend to secure, the whole of the Outstanding Indebtedness; | ||
2.3.3 | its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby; and | ||
2.3.4 | its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan Agreement and the other Security Documents as amended by this Deed. |
2.4 | Except as expressly amended hereby or pursuant hereto the Original Loan Agreement and the Security Documents shall remain in full force and effect and nothing herein contained shall relieve the Borrower or any other Obligor from any of its respective obligations under any such documents. |
3 | Conversion |
3.1 | On the date of this Deed the principal amount of the Loan outstanding under the Loan Agreement is [**][Confidential Treatment] ([**] [Confidential Treatment]). | ||
3.2 | The Agent has received an Election Notice to convert the basis upon which interest is calculated under the Loan Agreement to a Fixed Rate with effect from [**] [Confidential Treatment] (the Relevant Election Notice ). |
4
3.3 | The Agent has notified the Lenders of its receipt of the Relevant Election Notice and of the applicable Election Date and Conversion Date. | ||
3.4 | The Guarantor hereby confirms to the Borrower and the Agent that it has received a copy of the Relevant Election Notice and the Guarantee remains in full force and effect. | ||
3.5 | Each of the Borrower and the Guarantor acknowledges that if Conversion does not occur on [**] [Confidential Treatment] as contemplated by the Relevant Election Notice, interest on the Loan shall continue to be calculated at the Floating Interest Rate until Conversion does occur. | ||
3.6 | Each of the Borrower and the Guarantor acknowledges and agrees that any arrangements made or to be made by any of the Lenders in respect of its Contribution, whether with HSBC Bank plc as swap provider or otherwise, in order to offer a Fixed Rate to the Borrower on or prior to [**] [Confidential Treatment] as contemplated by this Deed shall constitute an Interest Exchange Arrangement. |
4 | Conditions Precedent |
4.1 | The consent of Hermes, the Lenders, the Agent, the Hermes Agent and the Trustee to the variation of the provisions of the Original Loan Agreement is conditional upon and shall not be effective unless and until the Agent has received the following in form and substance satisfactory to it: |
4.1.1 | on the date of this Deed, one (1) counterpart of this Deed duly executed by the Borrower and the Guarantor; | ||
4.1.2 | a written confirmation from the Process Agent that it will act for the Borrower and the Guarantor as agent for service of process in England in respect of this Deed; | ||
4.1.3 | the following corporate documents in respect of each of the Borrower and the Guarantor (together the Relevant Parties ): |
(a) | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant Party of its obligations under this Deed or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required; | ||
(b) | notarially attested secretarys certificate of each of the Relevant Parties: |
(i) | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) evidencing power to enter into the transactions contemplated in this Deed; | ||
(ii) | giving the names of its present officers and directors; |
5
(iii) | setting out specimen signatures of such officers and directors as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant Partys obligations under this Deed; | ||
(iv) | giving the legal owner of its shares and the number of such shares held; | ||
(v) | attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and | ||
(vi) | containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party; |
4.1.4 | the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested; and | ||
4.1.5 | the issue of such favourable written legal opinions including in respect of the Isle of Man and Bermuda in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, |
PROVIDED THAT no Event of Default and no Possible Event of Default has occurred and is continuing on the date on which the conditions precedent set out in this Clause 4.1 have been satisfied (subject to Clause 4.2). | |||
4.2 | If the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to permit the amendment of the Original Loan Agreement hereby without the Agent having received all of the documents or evidence referred to in Clause 4.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen (14) days of the date of this Deed (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement as aforesaid shall not be construed as a waiver of the Agents right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to permit the amendment in the absence of such documents or evidence. |
5 | Representations and Warranties |
5.1 | Each of the Borrower and the Guarantor represents and warrants to the Lenders, the Agent, the Hermes Agent and the Trustee that: |
5.1.1 | it has the power to enter into and perform this Deed and the transactions contemplated hereby and has taken all necessary action to authorise the entry into and performance of this Deed and such transactions; |
6
5.1.2 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
5.1.3 | its entry into and performance of this Deed and the transactions contemplated hereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document save to the extent contemplated in Clause 2.2 and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Trustee; | |||
5.1.4 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect; | ||
5.1.5 | all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and | ||
5.1.6 | it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to influence the Lenders, the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed. |
6 | Expenses | |
The Borrower and the Guarantor jointly and severally undertake to reimburse the Agent on demand on a full indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent, the Hermes Agent or the Trustee in respect of the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed. |
7
7 | Further Assurance | |
Each of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Trustee the full benefit of the rights, powers and remedies conferred upon the Agent, the Hermes Agent or the Trustee in any such document. | ||
8 | Counterparts | |
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. | ||
9 | Notices |
9.1 | Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower or the Guarantor pursuant to this Deed shall (unless the Borrower or the Guarantor has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department (but one (1) copy shall suffice)) with a copy to c/o Star Cruises Limited, Star Cruises Terminal, Pulau Indah, PO Box No. 288, 42009 Pelabuhan Klang, Selangor Darul Ehsan, Malaysia (marked for the attention of Mr Gerard Lim). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Borrower and the Guarantor specified another address) be made or delivered to the Agent at its Office, the details of which are set out in schedule 2 of the Original Loan Agreement. | ||
9.2 | Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to +60 3 3884 0213 (marked for the attention of Mr Gerard Lim) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in schedule 2 of the Original Loan Agreement) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor, shall be signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor. | ||
9.3 | The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed. |
8
10 | Governing Law | |
This Deed shall be governed by English law. | ||
11 | Jurisdiction |
11.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 11.1 is for the benefit of the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions. | |||
11.2 | Neither the Borrower nor the Guarantor may, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Borrowers and/or the Guarantors (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
11.3 | For the purpose of securing its obligations under Clause 11.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 11.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrowers or the Guarantors (as the case may be) process agent in England with the unconditional authority described in Clause 11.2. | ||
11.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment. | ||
11.5 | Each of the Borrower and the Guarantor appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. | ||
11.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the case may be) and may be enforced without review in any other jurisdiction. | ||
11.7 | Nothing in this Clause shall exclude or limit any right which the Agent, the Hermes Agent or the Trustee may have (whether under the laws of any country, |
9
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | |||
11.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | PA Turner | ||||||
by Paul Turner
|
) | |||||||
for and on behalf of
|
) | |||||||
NORWEGIAN JEWEL LIMITED
|
) | |||||||
in the presence of:
|
Illegible Signature | ) | ||||||
|
Trainee | ) | ||||||
|
Stephenson Hardwood | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | PA Turner | ||||||
by Paul Turner
|
) | |||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
in the presence of:
|
Illegible Signature | ) | ||||||
|
Trainee | ) | ||||||
|
Stephenson Hardwood | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
COMMERZBANK
|
) | |||||||
AKTIENGESELLSCHAFT
|
) | |||||||
Bremen
Branch as a Lender
|
) | |||||||
in the presence of:
|
Illegible Signature | ) | ||||||
|
Trainee | ) | ||||||
|
Stephenson Hardwood | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Mark Looi | ||||||
by Mark Looi
|
) | |||||||
an
authorized signatory of
|
) | |||||||
HSBC BANK PLC
|
) | |||||||
as a Lender
|
) | |||||||
in the presence of:
|
Nigel Groom | ) | ||||||
|
HSBC Bank Plc | ) | ||||||
|
Project and Export Finance | ) | ||||||
|
Floor 17 | ) | ||||||
|
8 Canada Square | ) | ||||||
|
London E14 5SH | ) |
10
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
KfW
|
) | |||||||
in the presence of:
|
Illegible Signature | ) | ||||||
|
Trainee | ) | ||||||
|
Stephenson Hardwood | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
DnB NOR BANK ASA
|
) | |||||||
in the presence of:
|
Illegible Signature | ) | ||||||
|
Trainee | ) | ||||||
|
Stephenson Hardwood | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Illegible Signature | ||||||
by Illegible Signature
|
) | |||||||
for and on behalf of
|
) | |||||||
OVERSEA-CHINESE BANKING
|
) | |||||||
CORPORATION LIMITED
|
) | |||||||
Singapore Branch
|
) | |||||||
in the presence of:
|
Illegible Signature | ) | ||||||
|
Trainee | ) | ||||||
|
Stephenson Hardwood | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
NORDDEUTSCHE LANDESBANK
|
) | |||||||
GIROZENTRALE
|
) | |||||||
in the presence of:
|
Illegible Signature | ) | ||||||
|
Trainee | ) | ||||||
|
Stephenson Hardwood | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
CALYON
|
) | |||||||
in the presence of:
|
Illegible Signature | |||||||
|
Trainee | ) | ||||||
|
Stephenson Hardwood | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) |
11
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
COMMERZBANK AKTIENGESELLSCHART
|
) | |||||||
as the Hermes Agent
|
) | |||||||
in the presence of:
|
Illegible Signature | ) | ||||||
|
Trainee | ) | ||||||
|
Stephenson Hardwood | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Mark Looi | ||||||
by Mark Looi
|
) | |||||||
an authorised signatory of
|
) | |||||||
HSBC BANK PLC
|
) | |||||||
as the Agent and the Trustee
|
) | |||||||
in the presence of:
|
Nigel Groom | ) | ||||||
|
Project and Export Finance | ) | ||||||
|
Floor 17 | ) | ||||||
|
8 Canada Square | ) | ||||||
|
London E14 5HQ | ) |
12
13
14
Page | ||||||
1
|
Definitions and Construction | 1 | ||||
|
||||||
2
|
Amendment of Original Loan Agreement, Original Guarantee and Security Documents | 2 | ||||
|
||||||
3
|
Conditions Precedent | 3 | ||||
|
||||||
4
|
Representations and Warranties | 4 | ||||
|
||||||
5
|
Expenses | 5 | ||||
|
||||||
6
|
Further Assurance | 5 | ||||
|
||||||
7
|
Counterparts | 6 | ||||
|
||||||
8
|
Notices | 6 | ||||
|
||||||
9
|
Governing Law | 6 | ||||
|
||||||
10
|
Jurisdiction | 6 | ||||
|
||||||
Schedule 1
|
The Lenders | 9 | ||||
|
||||||
Schedule 2
|
Amendment of Original Loan Agreement | 11 | ||||
|
||||||
Schedule 3
|
Amendment of Original Guarantee | 12 | ||||
|
||||||
Schedule 4
|
Quarterly Statement of Financial Covenants | 13 |
(1) | NORWEGIAN JEWEL LIMITED of International House, Castle Hill, Victoria Road, Douglas, Isle of Man, British Isles as borrower (the Borrower ); | |
(2) | NCL CORPORATION LTD. of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the Guarantor ); | |
(3) | HSBC BANK PLC of 8 Canada Square, London E14 5HQ as agent (the Agent ); | |
(4) | COMMERZBANK AKTIENGESELLSCHAFT of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the Hermes Agent ); and | |
(5) | HSBC BANK PLC of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the Trustee ). |
(A) | By a loan agreement dated 20 April 2004 as amended by a first supplemental deed thereto dated as of 30 September 2005 and a second supplemental deed thereto dated 4 April 2006 entered into between the Borrower as borrower, the several banks particulars of which are set out in Schedule 1 as lenders (the Lenders ), the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders (the Original Loan Agreement ), the Lenders granted to the Borrower a secured loan in the maximum amount of three hundred and thirty four million and fifty thousand Dollars (USD334,050,000) (the Loan ) for the purpose of enabling the Borrower to finance (among other things) the construction of the Vessel (as such term is defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured by (among other things) a guarantee and indemnity dated 20 April 2004 granted by the Guarantor as amended by the said first supplement dated as of 30 September 2005 (the Original Guarantee ). | |
(B) | The Guarantor has requested the consent of the Lenders, the Agent, the Hermes Agent and the Trustee to the amendment of certain provisions of the Original Loan Agreement and the Original Guarantee to conform such provisions to similar provisions in other loan documentation to which the Guarantor and/or other members of the NCLC Group are party. This Deed shall be executed as a deed. |
1 | Definitions and Construction |
1.1 | In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have the meanings set out below: |
Guarantee means the Original Guarantee as amended by this Deed; and | |||
Loan Agreement means the Original Loan Agreement as amended by this Deed. | |||
1.2 | The provisions of Clauses 1.2 and 1.3 of the Loan Agreement shall apply hereto (mutatis mutandis). |
2 | Amendment of Original Loan Agreement, Original Guarantee and Security Documents |
2.1 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Loan Agreement shall be read and construed as if the clauses referred to in the first column of Schedule 2 had been amended to read as set out in the second column of Schedule 2. | ||
2.2 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Guarantee shall be read and construed as if: |
2.2.1 | the clause referred to in the first column of Schedule 3 had been amended to read as set out in the second column of Schedule 3; and | ||
2.2.2 | schedule 1 had been deleted and substituted with Schedule 4. |
2.3 | Each of the Borrower and the Guarantor hereby confirms to the Agent, the Hermes Agent and the Trustee that with effect from the date of this Deed: |
2.3.1 | all references to the Original Loan Agreement in the Security Documents to which it is a party shall be construed as references to the Loan Agreement and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement; | ||
2.3.2 | the Security Documents to which it is a party shall apply to, and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement; | ||
2.3.3 | its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby; and | ||
2.3.4 | its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan Agreement and the other Security Documents as amended by this Deed. |
2.4 | Except as expressly amended hereby or pursuant hereto the Original Loan Agreement and the Security Documents shall remain in full force and effect and nothing herein contained shall relieve the Borrower or any other Obligor from any of its respective obligations under any such documents. |
2
3 | Conditions Precedent |
3.1 | The consent of the Agent, the Hermes Agent and the Trustee for themselves and on behalf of the Lenders to the variation of the provisions of the Original Loan Agreement and the Original Guarantee is conditional upon and shall not be effective unless and until the Agent has received the following in form and substance satisfactory to it: |
3.1.1 | on the date of this Deed, one (1) counterpart of this Deed duly executed by the Borrower and the Guarantor; | ||
3.1.2 | a written confirmation from the Process Agent that it will act for the Borrower and the Guarantor as agent for service of process in England in respect of this Deed; | ||
3.1.3 | the following corporate documents in respect of each of the Borrower and the Guarantor (together the Relevant Parties ): |
(a) | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant Party of its obligations under this Deed or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required; | ||
(b) | notarially attested secretarys certificate of each of the Relevant Parties: |
(i) | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) evidencing power to enter into the transactions contemplated in this Deed; | ||
(ii) | giving the names of its present officers and directors; | ||
(iii) | setting out specimen signatures of such officers and directors as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant Partys obligations under this Deed; | ||
(iv) | giving the legal owner of its shares and the number of such shares held; | ||
(v) | attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and | ||
(vi) | containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party; |
3
or (if applicable) certifying that there has been no change to the statements made in his or her secretarys certificate last provided to the Agent with respect to paragraphs (b)(i), (ii), (iii), (iv) and (vi) of this Clause 3.1.3(b) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; |
3.1.4 | the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested; | ||
3.1.5 | a Certified Copy of a letter from the Borrower to the Manager notifying of the provisions of clause 10.14(c) of the Loan Agreement; and | ||
3.1.6 | the issue of such favourable written legal opinions including in respect of the Isle of Man and Bermuda in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, |
PROVIDED THAT no Event of Default and no (save as disclosed in writing to the Agent before the date of this Deed) Possible Event of Default has occurred and is continuing on the date on which the conditions precedent set out in this Clause 3.1 have been satisfied (subject to Clause 3.2). | |||
3.2 | If the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to permit the amendment of the Original Loan Agreement and the Original Guarantee hereby without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen (14) days of the date of this Deed (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the Agents right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to permit the amendment in the absence of such documents or evidence. |
4 | Representations and Warranties |
4.1 | Each of the Borrower and the Guarantor represents and warrants to the Agent, the Hermes Agent and the Trustee that: |
4.1.1 | it has the power to enter into and perform this Deed and the transactions contemplated hereby and has taken all necessary action to authorise the entry into and performance of this Deed and such transactions; | ||
4.1.2 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
4.1.3 | its entry into and performance of this Deed and the transactions contemplated hereby do not and will not conflict with: |
4
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Trustee; | |||
4.1.4 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect; | ||
4.1.5 | all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and | ||
4.1.6 | it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to influence the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed. |
5 | Expenses | |
The Borrower and the Guarantor jointly and severally undertake to reimburse the Agent on demand on a full indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent, the Hermes Agent or the Trustee in respect of the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed. | ||
6 | Further Assurance | |
Each of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent and the Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Trustee the full benefit of the rights, powers and remedies conferred upon the Agent, the Hermes Agent or the Trustee in any such document. |
5
7 | Counterparts | |
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. | ||
8 | Notices |
8.1 | Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower or the Guarantor pursuant to this Deed shall (unless the Borrower or the Guarantor has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department (but one (1) copy shall suffice)) with a copy to c/o Star Cruises Limited, Star Cruises Terminal, Pulau Indah, PO Box No. 288, 42009 Pelabuhan Klang, Selangor Darul Ehsan, Malaysia (marked for the attention of Mr Gerard Lim). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Borrower and the Guarantor specified another address) be made or delivered to the Agent at its Office, the details of which are set out in schedule 2 of the Original Loan Agreement. | ||
8.2 | Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to +60 3 3884 0213 (marked for the attention of Mr Gerard Lim) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in schedule 2 of the Original Loan Agreement) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor, shall be signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor. | ||
8.3 | The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed. |
9 | Governing Law | |
This Deed shall be governed by English law. | ||
10 | Jurisdiction |
10.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute" ). Each party to this Deed |
6
agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | |||
This Clause 10.1 is for the benefit of the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions. | |||
10.2 | Neither the Borrower nor the Guarantor may, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Borrowers and/or the Guarantors (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
10.3 | For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrowers or the Guarantors (as the case may be) process agent in England with the unconditional authority described in Clause 10.2. | ||
10.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment. | ||
10.5 | Each of the Borrower and the Guarantor appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. | ||
10.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the case may be) and may be enforced without review in any other jurisdiction. | ||
10.7 | Nothing in this Clause shall exclude or limit any right which the Agent, the Hermes Agent or the Trustee may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | ||
10.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
7
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Vijay Jeyaratnam | ||||||
by Vijay Jeyaratnam
|
) | |||||||
for and on behalf of
|
) | |||||||
NORWEGIAN JEWEL LIMITED
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
by Colin Veitch
|
) | |||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
in the presence of:
|
Mark E. Warren | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
COMMERZBANK AKTIENGESELLSCHAFT
|
) | |||||||
as the Hermes Agent
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitation | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Mark Looi | ||||||
by Mark Looi
|
) | |||||||
for and on behalf of
|
) | |||||||
HSBC BANK PLC
|
) | |||||||
as the Agent and the Trustee
|
) | |||||||
in the presence of:
|
Marcus Pcumley | ) | ||||||
|
HSBC Bank Plc | ) | ||||||
|
Project and Export Finance
Floor 17 |
) | ||||||
|
8 Canada Square | ) | ||||||
|
London E14 5HQ | ) |
8
9
10
Definition/Clause | Amendment | |
Clause 9.2.21
|
Completeness of documents | |
|
||
|
The copies of the Building Contract, the Supervision Agreement, the Management Agreement, the Interest Exchange Arrangements and any other relevant third party agreements delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed other than (if applicable), in the case of the Management Agreement, in accordance with Clause 10.14 nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | |
|
||
Clause 10.14
|
Supervision and management | |
|
||
|
Except with the prior consent of the Agent, the Borrower will not: | |
|
||
|
(a) permit any person other than the Supervisor and the Manager to be the supervisor of
construction and the manager of, including providing crewing services to, the Vessel;
|
|
|
||
|
(b) permit any amendment to be made to the terms of the Supervision Agreement or the Management
Agreement unless an amendment to the Management Agreement is advised by the Borrowers tax counsel
or is deemed necessary by the parties thereto but provided that the amendment does not imperil the
security to be provided pursuant to the Security Documents or adversely affect the ability of any
Obligor to perform its obligations under the Transaction Documents; or
|
|
|
||
|
(c) permit the Vessel to be employed other than within the NCL or NCL America brand (as
applicable).
|
11
Definition/Clause | Amendment | |
Clause 11.1.3
|
as at 30 September 2006 and as at the end of each subsequent financial quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**] [Confidential Treatment]. | |
|
||
|
Amounts available for drawing under any revolving or other credit facilities of the NCLC Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
12
TO: |
HSBC BANK PLC
Project and Export Finance 8 Canada Square London E14 5HQ England Attn: Mr Alan Marshall (as the Agent (as such term is defined in the Guarantee (as hereinafter defined)) |
13
Clause (of Guarantee) | as of [] | Required Covenants | ||||
11.1.1/
|
Free Liquidity | A | A>[**] [Confidential Treatment] | |||
11.1.2(b)**
|
(11.1.1)** | |||||
|
||||||
|
A>[**] [Confidential Treatment] | |||||
|
(11.1.2(b))** | |||||
|
||||||
11.1.2(a)
|
Consolidated EBITDA: | B | >[**] [Confidential Treatment] | |||
|
||||||
|
Consolidated Debt Service | C | ||||
|
||||||
11.1.3
|
Total Net Funded Debt: | D | <[**] [Confidential Treatment] | |||
|
||||||
|
Total Capitalisation | E |
|
Consolidated EBITDA | |||||||
|
Consolidated Net Income (loss) | x | ||||||
(Deduct)/Add:
|
(Gain)/Loss on sale of assets or reserves | x | ||||||
Add:
|
Consolidated Interest Expense | x | ||||||
Add:
|
Depreciation and amortisation of assets | x | ||||||
Add:
|
Impairment charges | x | ||||||
(Deduct)/Add:
|
Other non-cash charges (gains) | x | ||||||
Add:
|
Deferred income tax expense | x | ||||||
|
||||||||
|
Consolidated EBITDA | x | B | |||||
|
||||||||
|
Consolidated Debt Service | |||||||
|
Principal paid/payable (excluding balloon payments, voluntary | x | ||||||
|
prepayments/repayments on sale/total loss of an NCLC Fleet | |||||||
|
vessel) | |||||||
Add:
|
Consolidated Interest Expense | x | ||||||
|
Distributions | x | ||||||
|
Rent under capitalised leases | x | ||||||
|
||||||||
|
Consolidated Debt Service | x | C | |||||
|
||||||||
|
Total Net Funded Debt | |||||||
|
Indebtedness for Borrowed Money | x | ||||||
Add:
|
Guarantees of non-NCLC Group members' obligations | x | ||||||
|
||||||||
|
x | |||||||
|
||||||||
Deduct:
|
Cash Balance | (x | ) | |||||
|
||||||||
|
Total Net Funded Debt | (x | ) | D | ||||
|
||||||||
|
Total Capitalisation | |||||||
|
Total Net Funded Debt | x | ||||||
Add:
|
Consolidated stockholders' equity | x | ||||||
|
||||||||
|
Total Capitalisation | x | E | |||||
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14
** | Evidence satisfactory to the Agent of A at all times during the relevant period shall be provided together with this statement |
15
Page | ||||||
1
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Definitions and Construction | 1 | ||||
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2
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Amendment of Original Loan Agreement, Original Guarantee and Security Documents | 2 | ||||
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3
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Conditions Precedent | 3 | ||||
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4
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Representations and Warranties | 4 | ||||
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5
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Expenses | 5 | ||||
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6
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Further Assurance | 5 | ||||
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7
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Counterparts | 6 | ||||
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8
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Notices | 6 | ||||
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9
|
Governing Law | 6 | ||||
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10
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Jurisdiction | 7 | ||||
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Schedule 1
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The Lenders | 9 | ||||
|
||||||
Schedule 2
|
Amendment of Original Loan Agreement | 11 | ||||
|
||||||
Schedule 3
|
Amendment of Original Guarantee | 12 | ||||
|
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Schedule 4
|
Quarterly Statement of Financial Covenants | 13 |
(1) | PRIDE OF HAWAII, INC. of 1209 Orange Street, Wilmington, Delaware 19801, United States of America as borrower (the Borrower ); | |
(2) | NCL CORPORATION LTD. of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the Guarantor ); | |
(3) | HSBC BANK PLC of 8 Canada Square, London E14 5HQ as agent (the Agent ); | |
(4) | COMMERZBANK AKTIENGESELLSCHAFT of Kaiserplatz, 60311 Frankfurt am Main, Federal Republic of Germany as agent (the Hermes Agent ); and | |
(5) | HSBC BANK PLC of 8 Canada Square, London E14 5HQ as trustee for itself and the Lenders (as hereinafter defined) (the Trustee ). |
(A) | By a loan agreement dated 20 April 2004 as amended by a first supplement thereto dated 25 October 2004 and a second supplement thereto dated as of 30 September 2005 entered into between the Borrower as borrower, the several banks particulars of which are set out in Schedule 1 as lenders (the Lenders ), the Agent as agent for (among others) the Lenders, the Hermes Agent as agent for (among others) the Lenders and the Trustee as trustee for (among others) the Lenders (the Original Loan Agreement ), the Lenders granted to the Borrower a secured loan in the Equivalent Amount of up to three hundred and eight million one hundred and thirty thousand Euro ( 308,130,000) (the Loan ), subject to clause 2.5 of the Original Loan Agreement, for the purpose of enabling the Borrower to finance (among other things) the construction of the Vessel (as such term is defined in the Original Loan Agreement) on the terms and conditions therein contained. The repayment of the Loan by the Borrower has been secured by (among other things) a guarantee and indemnity dated 20 April 2004 granted by the Guarantor as amended by the said second supplement dated as of 30 September 2005 (the Original Guarantee ). | |
(B) | The Guarantor has requested the consent of the Lenders, the Agent, the Hermes Agent and the Trustee to the amendment of certain provisions of the Original Loan Agreement and the Original Guarantee to conform such provisions to similar provisions in other loan documentation to which the Guarantor and/or other members of the NCLC Group are party. This Deed shall be executed as a deed. |
1 | Definitions and Construction |
1.1 | In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Loan Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have the meanings set out below: |
Guarantee means the Original Guarantee as amended by this Deed; and | |||
Loan Agreement means the Original Loan Agreement as amended by this Deed. | |||
1.2 | The provisions of Clauses 1.2 and 1.3 of the Loan Agreement shall apply hereto (mutatis mutandis). |
2 | Amendment of Original Loan Agreement, Original Guarantee and Security Documents |
2.1 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Loan Agreement shall be read and construed as if the clauses referred to in the first column of Schedule 2 had been amended to read as set out in the second column of Schedule 2. | ||
2.2 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Guarantee shall be read and construed as if: |
2.2.1 | the clause referred to in the first column of Schedule 3 had been amended to read as set out in the second column of Schedule 3; and | ||
2.2.2 | schedule 1 had been deleted and substituted with Schedule 4. |
2.3 | Each of the Borrower and the Guarantor hereby confirms to the Agent, the Hermes Agent and the Trustee that with effect from the date of this Deed: |
2.3.1 | all references to the Original Loan Agreement in the Security Documents to which it is a party shall be construed as references to the Loan Agreement and all terms used in such Security Documents whose meanings are defined by reference to the Original Loan Agreement shall be defined by reference to the Loan Agreement; | ||
2.3.2 | the Security Documents to which it is a party shall apply to, and extend to secure, the whole of the Outstanding Indebtedness as defined in clause 1.1 of the Loan Agreement; | ||
2.3.3 | its obligations under the Security Documents to which it is a party shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby; and | ||
2.3.4 | its obligations under the Security Documents to which it is a party shall remain in full force and effect as security for the obligations of the Borrower under the Loan Agreement and the other Security Documents as amended by this Deed. |
2.4 | Except as expressly amended hereby or pursuant hereto the Original Loan Agreement and the Security Documents shall remain in full force and effect and nothing herein contained shall relieve the Borrower or any other Obligor from any of its respective obligations under any such documents. |
2
3 | Conditions Precedent |
3.1 | The consent of the Agent, the Hermes Agent and the Trustee for themselves and on behalf of the Lenders to the variation of the provisions of the Original Loan Agreement and the Original Guarantee is conditional upon and shall not be effective unless and until the Agent has received the following in form and substance satisfactory to it: |
3.1.1 | on the date of this Deed, one (1) counterpart of this Deed duly executed by the Borrower and the Guarantor; | ||
3.1.2 | a written confirmation from the Process Agent that it will act for the Borrower and the Guarantor as agent for service of process in England in respect of this Deed; | ||
3.1.3 | the following corporate documents in respect of each of the Borrower and the Guarantor (together the Relevant Parties ): |
(a) | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the respective Relevant Party of its obligations under this Deed or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required; | ||
(b) | notarially attested secretarys certificate of each of the Relevant Parties: |
(i) | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) evidencing power to enter into the transactions contemplated in this Deed; | ||
(ii) | giving the names of its present officers and directors; | ||
(iii) | setting out specimen signatures of such officers and directors as are authorised by the Relevant Party to sign documents or otherwise undertake the performance of that Relevant Partys obligations under this Deed; | ||
(iv) | giving the legal owner of its shares and the number of such shares held; | ||
(v) | attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the amendment to the Post Delivery Mortgage and the issue of any power of attorney to execute the same; and | ||
(vi) | containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Relevant Party; |
3
or (if applicable) certifying that there has been no change to the statements made in his or her secretarys certificate last provided to the Agent with respect to paragraphs (b)(i), (ii), (iii), (iv) and (vi) of this Clause 3.1.3(b) and attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the amendment to the Post Delivery Mortgage and the issue of any power of attorney to execute the same; |
3.1.4 | the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested; | ||
3.1.5 | a first amendment to the Post Delivery Mortgage duly executed and lodged for recordation at the United States Coast Guard National Vessel Documentation Center; | ||
3.1.6 | Certified Copies of letters from the Borrower to the Manager and from the Manager to the Sub-Agent notifying of the provisions of clause 10.14(c) of the Loan Agreement; and | ||
3.1.7 | the issue of such favourable written legal opinions including in respect of the United States of America, Delaware and Bermuda in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, |
PROVIDED THAT no Event of Default and (save as disclosed in writing to the Agent before the date of this Deed) no Possible Event of Default has occurred and is continuing on the date on which the conditions precedent set out in this Clause 3.1 have been satisfied (subject to Clause 3.2). | |||
3.2 | If the Agent, the Hermes Agent and the Trustee, acting unanimously, decide (or the Agent in accordance with the Agency and Trust Deed decides) to permit the amendment of the Original Loan Agreement and the Original Guarantee hereby without the Agent having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen (14) days of the date of this Deed (or such other period as the Agent may stipulate) and the amendment of the Original Loan Agreement and the Original Guarantee as aforesaid shall not be construed as a waiver of the Agents right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent, the Hermes Agent, the Trustee or the Lenders any obligation to permit the amendment in the absence of such documents or evidence. |
4 | Representations and Warranties |
4.1 | Each of the Borrower and the Guarantor represents and warrants to the Agent, the Hermes Agent and the Trustee that: |
4.1.1 | it has the power to enter into and perform this Deed and the transactions contemplated hereby and has taken all necessary action to authorise the entry into and performance of this Deed and such transactions; |
4
4.1.2 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
4.1.3 | its entry into and performance of this Deed and the transactions contemplated hereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Trustee; | |||
4.1.4 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect; | ||
4.1.5 | all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and | ||
4.1.6 | it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to influence the Agent, the Hermes Agent and/or the Trustee in deciding whether or not to enter into this Deed. |
5 | Expenses | |
The Borrower and the Guarantor jointly and severally undertake to reimburse the Agent on demand on a full indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent, the Hermes Agent or the Trustee in respect of the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed. | ||
6 | Further Assurance | |
Each of the Borrower and the Guarantor will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the |
5
execution of all such documents in a form satisfactory to the Agent and the Hermes Agent as the Agent and the Hermes Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Trustee the full benefit of the rights, powers and remedies conferred upon the Agent, the Hermes Agent or the Trustee in any such document. | ||
7 | Counterparts | |
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. | ||
8 | Notices |
8.1 | Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower or the Guarantor pursuant to this Deed shall (unless the Borrower or the Guarantor has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Borrower and/or the Guarantor c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department (but one (1) copy shall suffice)) with a copy to c/o Star Cruises Limited, Star Cruises Terminal, Pulau Indah, PO Box No. 288, 42009 Pelabuhan Klang, Selangor Darul Ehsan, Malaysia (marked for the attention of Mr Gerard Lim). Any notice, demand or other communication to be made or delivered by the Borrower or the Guarantor pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Borrower and the Guarantor specified another address) be made or delivered to the Agent at its Office, the details of which are set out in schedule 2 of the Original Loan Agreement. | ||
8.2 | Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Borrower and the Guarantor is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to +60 3 3884 0213 (marked for the attention of Mr Gerard Lim) and in the case of the Agent, the Hermes Agent or the Trustee is as recorded in schedule 2 of the Original Loan Agreement) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent, the Hermes Agent or the Trustee by the Borrower or the Guarantor, shall be signed by the person or persons authorised in writing by the Borrower or the Guarantor (as the case may be) and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent, the Hermes Agent or the Trustee to the Borrower and the Guarantor. | ||
8.3 | The provisions of clauses 18.1, 18.4 and 18.5 of the Original Loan Agreement shall apply to this Deed. |
9 | Governing Law | |
This Deed shall be governed by English law. |
6
10 | Jurisdiction |
10.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 10.1 is for the benefit of the Agent, the Hermes Agent and the Trustee only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions. | |||
10.2 | Neither the Borrower nor the Guarantor may, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Borrower and/or the Guarantor (as the case may be) shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Borrowers and/or the Guarantors (as the case may be) process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower and/or the Guarantor of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
10.3 | For the purpose of securing its obligations under Clause 10.2, each of the Borrower and the Guarantor irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrowers or the Guarantors (as the case may be) process agent in England with the unconditional authority described in Clause 10.2. | ||
10.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower or the Guarantor (as the case may be) of the service of any process or to forward any process to the Borrower or the Guarantor (as the case may be)) shall invalidate any proceedings or judgment. | ||
10.5 | Each of the Borrower and the Guarantor appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. | ||
10.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and/or the Guarantor (as the case may be) and may be enforced without review in any other jurisdiction. | ||
10.7 | Nothing in this Clause shall exclude or limit any right which the Agent, the Hermes Agent or the Trustee may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. |
7
10.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Vijay Jeyaratnam | ||||||
by Vijay Jeyaratnam
|
) | |||||||
for and on behalf of
|
) | |||||||
PRIDE OF HAWAII, INC.
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
by Colin Veitch
|
) | |||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
in the presence of:
|
Mark E. Warren | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf of
|
) | |||||||
COMMERZBANK AKTIENGESELLSCHART
|
) | |||||||
as the Henmes Agent
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Mark Looi | ||||||
by Mark Looi
|
) | |||||||
for and on behalf of
|
) | |||||||
HSBC BANK PLC
|
) | |||||||
as the Agent and the Trustee
|
) | |||||||
in the presence of:
|
Marcus Pcumley | ) | ||||||
|
HSBC Bank Plc | ) | ||||||
|
Project and Export Finance
Floor 17 |
) | ||||||
|
8 Canada Square | ) | ||||||
|
London E14 5HQ | ) |
8
9
10
Definition/Clause | Amendment | |
Clause 9.2.21
|
Completeness of documents | |
|
||
|
The copies of the Building Contract, the Supervision Agreement, the Management Agreement the Sub-Agency Agreement, the Interest Exchange Arrangements and any other relevant third party agreements delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed other than (if applicable), in the case of the Management Agreement or the Sub-Agency Agreement, in accordance with Clause 10.14 nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | |
|
||
Clause 10.14
|
Supervision and management | |
|
||
|
Except with the prior consent of the Agent, the Borrower will not: | |
|
||
|
(a) permit any person other than the Supervisor, the Manager and the Sub-Agent to be the
supervisor of construction and the manager and sub-agent of, including providing crewing services
to, the Vessel;
|
|
|
||
|
(b) permit any amendment to be made to the terms of the Supervision Agreement, the Management
Agreement or the Sub-Agency Agreement unless an amendment to the Management Agreement or the
Sub-Agency Agreement is advised by the Borrowers tax counsel or is deemed necessary by the
parties thereto but provided that the amendment does not imperil the security to be provided
pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its
obligations under the Transaction Documents; or
|
|
|
||
|
(c) permit the Vessel to be employed other than within the NCL or NCL America brand (as
applicable).
|
11
Definition/Clause | Amendment | |
Clause 11.1.3
|
as at 30 September 2006 and as at the end of each subsequent financial quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**] [Confidential Treatment]. | |
|
||
|
Amounts available for drawing under any revolving or other credit facilities of the NCLC Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
12
TO: |
HSBC BANK PLC
Project and Export Finance 8 Canada Square London E14 5HQ England Attn: Mr Alan Marshall (as the Agent (as such term is defined in the Guarantee (as hereinafter defined)) |
13
Clause (of Guarantee)
as of [ ]
Required Covenants
Free Liquidity
A
A>[**] [Confidential Treatment]
(11.1.1)**
A>[**] [Confidential Treatment]
(11.1.2(b))**
Consolidated EBITDA:
B
>[**] [Confidential Treatment]
Consolidated Debt Service
C
Total Net Funded Debt:
D
<[**] [Confidential Treatment]
Total Capitalisation
E
Consolidated EBITDA
Consolidated Net Income (loss)
x
(Gain)/Loss on sale of assets or reserves
x
Consolidated Interest Expense
x
Depreciation and amortisation of assets
x
Impairment charges
x
Other non-cash charges (gains)
x
Deferred income tax expense
x
Consolidated EBITDA
x
B
Consolidated Debt Service
Principal paid/payable (excluding balloon payments, voluntary
x
prepayments/repayments on sale/total loss of an NCLC Fleet
vessel)
Consolidated Interest Expense
x
Distributions
x
Rent under capitalised leases
x
Consolidated Debt Service
x
C
Total Net Funded Debt
Indebtedness for Borrowed Money
x
Guarantees of non-NCLC Group members obligations
x
x
Cash Balance
(x
)
Total Net Funded Debt
(x
)
D
Total Capitalisation
Total Net Funded Debt
x
Consolidated stockholders equity
x
Total Capitalisation
x
E
14
** | Evidence satisfactory to the Agent of A at all times during the relevant period shall be provided together with this statement |
15
Page | ||||||
1
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Definitions and Construction | 1 | ||||
|
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2
|
Amendment of Original Facility Agreement and other Security Documents | 2 | ||||
|
||||||
3
|
Conditions Precedent | 2 | ||||
|
||||||
4
|
Representations and Warranties | 4 | ||||
|
||||||
5
|
Expenses | 5 | ||||
|
||||||
6
|
Further Assurance | 5 | ||||
|
||||||
7
|
Counterparts | 5 | ||||
|
||||||
8
|
Notices | 5 | ||||
|
||||||
9
|
Governing Law | 6 | ||||
|
||||||
10
|
Jurisdiction | 6 | ||||
|
||||||
Schedule 1
|
Amendment of Original Facility Agreement | 8 | ||||
|
||||||
Schedule 2
|
Amendment of Deed of Covenants | 10 | ||||
|
||||||
Schedule 3
|
Amendment of Management Agreement Assignment | 11 | ||||
|
||||||
Schedule 4
|
Quarterly Statement of Financial Covenants | 12 | ||||
|
||||||
Schedule 5
|
Management Agreement | 15 |
DATED
13 NOVEMBER 2006
|
(1) | NCL CORPORATION LTD. of Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as borrower (the Borrower ); | |
(2) | DnB NOR BANK ASA of Stranden 21, NO-0021 Oslo, Norway as agent for itself and the Lenders (the Agent ); and | |
(3) | COMMERZBANK AKTIENGESELLSCHAFT of Ness 7-9, 20457 Hamburg, Federal Republic of Germany as German State of Lower Saxony agent (the Lower Saxony Guarantee Agent ). |
(A) | By a secured loan facility agreement dated 7 October 2005 (the Original Facility Agreement ) made between (among others) (1) the Borrower as borrower (2) the banks whose names and Lending Branches appear in schedule 1 to the Facility Agreement as lenders (the Lenders ) (3) the Agent as agent and (4) the Lower Saxony Guarantee Agent as agent, the Lenders agreed to make available to the Borrower a revolving loan facility of up to six hundred and twenty four million euro (EUR624,000,000) or the equivalent in Dollars (the Facility ) in two (2) tranches. The repayment of the Facility by the Borrower will be secured by (among other things) first priority statutory Bahamian ship mortgages to be granted by the Owners respectively over the Vessels (the Mortgages ). | |
(B) | The Borrower has requested the consent of the Lenders and the Agent to the amendment of certain provisions of the Original Facility Agreement and of the agreed form of the deed of covenants which will constitute part of each of the Mortgages (the Deed of Covenants ), which form is attached to the security letter dated 7 October 2005 between the Borrower and the Agent (the Security Letter ), to conform such provisions to similar provisions in other loan documentation to which the Borrower and/or other members of the NCLC Group are party. This Deed shall be executed as a deed. |
1 | Definitions and Construction |
1.1 | In this Deed including the preamble and recitals hereto (unless the context otherwise requires) any term or expression defined in the preamble or the recitals shall have the meaning ascribed to it therein and terms and expressions not defined herein but whose meanings are defined in the Facility Agreement shall have the meanings set out therein. In addition, the following terms and expressions shall have the meanings set out below: | ||
" Facility Agreement means the Original Facility Agreement as amended by this Deed. | |||
1.2 | The provisions of Clauses 1.2 and 1.3 of the Facility Agreement shall apply hereto (mutatis mutandis). |
2 | Amendment of Original Facility Agreement and other Security Documents |
2.1 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Original Facility Agreement shall be read and construed as if: |
2.1.1 | the clauses referred to in the first column of Schedule 1 had been amended to read as set out in the second column of Schedule 1; and | ||
2.1.2 | schedule 6 had been deleted and substituted with Schedule 4. |
2.2 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the agreed form of the Deed of Covenants to be granted by each of the Guarantors over its Vessel shall be deemed to be amended so that the clause referred to in the first column of Schedule 2 reads as set out in the second column of Schedule 2. | ||
2.3 | Subject to Clause 3, the parties hereto agree that from the date of this Deed and primarily consequent upon the amendment of the agreed form of the Deed of Covenants the agreed form of the Management Agreement Assignments attached to the Security Letter shall be deemed to be amended so that: |
2.3.1 | the clauses referred to in the first column of Schedule 3 read as set out in the second column of Schedule 3; and | ||
2.3.2 | a new clause 5.15 of the schedule of covenants to schedule 1 thereto read as follows: | ||
not permit the Vessel to be employed other than within the NCL or NCL America brand (as applicable). ; |
2.3.3 | Subject to Clause 3, the parties hereto agree that from the date of this Deed the Security Letter shall be read and construed as if the Management Agreement attached to the Security Letter had been substituted with the Management Agreement attached to this Deed as Schedule 5. | ||
2.3.4 | The Borrower hereby confirms to the Agent that with effect from the date of this Deed its obligations under the Loan Agreement shall not be discharged, impaired or otherwise affected by reason of the execution of this Deed or of any of the documents or transactions contemplated hereby. | ||
2.4 | Except as expressly amended hereby or pursuant hereto the Original Facility Agreement shall remain in full force and effect and nothing herein contained shall relieve the Borrower from any of its obligations under such document. |
3 | Conditions Precedent |
3.1 | The consent of the Agent and the Lower Saxony Guarantee Agent for themselves and on behalf of the Lenders to the variation of the provisions of the Original Facility Agreement and the Deed of Covenants is conditional upon and shall not be effective unless and until the Agent has received the following in form and substance satisfactory to it: |
3.1.1 | on the date of this Deed, one (1) counterpart of this Deed duly executed by the Borrower; |
2
3.1.2 | a written confirmation from the Process Agent that it will act for the Borrower as agent for service of process in England in respect of this Deed; | ||
3.1.3 | the following corporate documents in respect of the Borrower: |
(a) | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the Borrower of its obligations under this Deed or if no such consents are required a certificate from a duly appointed officer of the Borrower to this effect confirming that no such consents are required; | ||
(b) | notarially attested secretarys certificate of the Borrower: |
(i) | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws (or equivalent constitutional documents) evidencing power to enter into the transactions contemplated in this Deed; | ||
(ii) | giving the names of its present officers and directors; | ||
(iii) | setting out specimen signatures of such officers and directors as are authorised by the Borrower to sign documents or otherwise undertake the performance of the Borrowers obligations under this Deed; | ||
(iv) | giving the legal owner of its shares and the number of such shares held; | ||
(v) | attaching copies of resolutions passed at duly convened meetings of the directors and, if required by the Agent, the shareholders or members of each of the Relevant Parties authorising (as applicable) the execution of this Deed and the issue of any power of attorney to execute the same; and | ||
(vi) | containing a declaration of solvency as at the date of the certificate of the duly appointed officer of the Borrower; |
3.1.4 | the original powers of attorney, if any, issued pursuant to the resolutions referred to above and notarially attested; and |
3
3.1.5 | the issue of such favourable written legal opinions including in respect of Bermuda in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, |
PROVIDED THAT no Event of Default and (save as disclosed in writing to the Agent before the date of this Deed) no Possible Event of Default has occurred and is continuing on the date on which the conditions precedent set out in this Clause 3.1 have been satisfied (subject to Clause 3.2). | |||
3.2 | If the Agent in accordance with clause 20 of the Original Facility Agreement decides to permit the amendment of the Original Facility Agreement and the Deed of Covenants hereby without having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen (14) days of the date of this Deed (or such other period as the Agent may stipulate) and the amendment of the Original Facility Agreement and the Deed of Covenants as aforesaid shall not be construed as a waiver of the Agents right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent or the Lenders any obligation to permit the amendment in the absence of such documents or evidence. |
4 | Representations and Warranties |
4.1 | The Borrower represents and warrants to the Agent that: |
4.1.1 | it has the power to enter into and perform this Deed and the transactions and documents contemplated hereby and has taken all necessary action to authorise the entry into and performance of this Deed and such transactions and documents; | ||
4.1.2 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
4.1.3 | its entry into and performance of this Deed and the transactions contemplated hereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on it or its assets pursuant to the provisions of any such agreement or document and in particular but without prejudice to the foregoing the entry into and performance of this Deed and the transactions and documents contemplated hereby and thereby will not render invalid, void or voidable any security granted by it to the Agent; | |||
4.1.4 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and |
4
enforceability of this Deed and each of the other documents contemplated hereby and thereby and the transactions contemplated hereby and thereby have been obtained or effected and are in full force and effect; | |||
4.1.5 | all information furnished by it to the Agent or its agents relating to the business and affairs of an Obligor in connection with this Deed and the other documents contemplated hereby and thereby was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and | ||
4.1.6 | it has fully disclosed in writing to the Agent all facts relating to its business which it knows or should reasonably know and which might reasonably be expected to influence the Agent in deciding whether or not to enter into this Deed. |
5 | Expenses | |
The Borrower undertakes to reimburse the Agent on demand on a full indemnity basis for the reasonable charges and expenses (together with value added tax or any similar tax thereon and including without limitation the fees and expenses of legal and other advisers) incurred by the Agent in respect of the negotiation, preparation, printing, execution, registration and enforcement of this Deed and any other documents required in connection with the implementation of this Deed. | ||
6 | Further Assurance | |
The Borrower will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent as the Agent may reasonably consider necessary for giving full effect to this Deed or any of the documents contemplated hereby or securing to the Agent the full benefit of the rights, powers and remedies conferred upon the Agent in any such document. | ||
7 | Counterparts | |
This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. | ||
8 | Notices |
8.1 | Any notice, demand or other communication (unless made by telefax) to be made or delivered to the Borrower pursuant to this Deed shall (unless the Borrower has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Borrower c/o 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department (but one (1) copy shall suffice)) with a copy to c/o Star Cruises Limited, Star Cruises Terminal, Pulau Indah, PO Box No. 288, 42009 Pelabuhan Klang, Selangor Darul Ehsan, Malaysia (marked for the attention of Mr Gerard Lim). Any notice, demand or other communication to be made or delivered by the Borrower pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Borrower specified another address) |
5
be made or delivered to the Agent at its Office, the details of which are set out in schedule 1 of the Original Facility Agreement. | |||
8.2 | Any notice, demand or other communication to be made or delivered pursuant to this Deed may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Borrower is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) with a copy to +60 3 3884 0213 (marked for the attention of Mr Gerard Lim) and in the case of the Agent is as recorded in schedule 1 of the Original Facility Agreement) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent by the Borrower, shall be signed by the person or persons authorised in writing by the Borrower and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by Clause 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent to the Borrower. | ||
8.3 | The provisions of clauses 23.1, 23.5 and 23.6 of the Original Facility Agreement shall apply to this Deed. |
9 | Governing Law | |
This Deed shall be governed by English law. | ||
10 | Jurisdiction |
10.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 10.1 is for the benefit of the Agent only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions. | |||
10.2 | The Borrower may not, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Borrower shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Borrowers process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
10.3 | For the purpose of securing its obligations under Clause 10.2, the Borrower irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 10.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrowers process agent in England with the unconditional authority described in Clause 10.2. |
6
10.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower of the service of any process or to forward any process to the Borrower) shall invalidate any proceedings or judgment. | ||
10.5 | The Borrower appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. | ||
10.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and may be enforced without review in any other jurisdiction. | ||
10.7 | Nothing in this Clause shall exclude or limit any right which the Agent may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | ||
10.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
by Colin Veitch
|
) | |||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
in the presence of:
|
Mark E. Warren | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf
|
) | |||||||
DaB NOR BANK ASA
|
) | |||||||
as the Agent
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Julie Clegg | ||||||
by Julie Clegg
|
) | |||||||
for and on behalf
|
) | |||||||
COMMERZBANK AKTIENGESELLSCHART
|
) | |||||||
as the Lower Saxony Guarantee Agent
|
) | |||||||
in the presence of:
|
Jaya Prasannan | ) | ||||||
|
Trainee Solicitor | ) | ||||||
|
One St. Pauls ChurchYard | ) | ||||||
|
London EC4M 8SH | ) |
7
Definition/Clause | Amendment | |
Clause 9.2.21
|
Completeness of documents The copies of the Building Contracts, the Management Agreements and any other relevant third party agreements delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed other than (if applicable), in the case of the Management Agreements, in accordance with clause 6.1.17 of the two (2) deeds of covenants collateral to the two (2) first priority statutory Bahamian ship mortgages to be granted by each of the Owners over its Vessel nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | |
|
||
Clause 10.2.5
|
within fifteen (15) days of a request from the Agent (but at intervals no more frequently than annually at the Borrowers expense unless an Event of Default has occurred and is continuing), a valuation of each of the Vessels obtained in accordance with the provisions of Clause 10.17; | |
|
||
Clause 10.3.3
|
as at 30 September 2006 and as at the end of each subsequent financial quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**] [Confidential Treatment]. | |
|
||
|
Amounts available for drawing under the Facility or any other revolving or other credit facilities of the NCLC Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
8
Definition/Clause | Amendment | |
Clause 10.17.1
|
Each of the Vessels shall for the purposes of this Clause 10.17 be valued in Dollars by two (2) independent firms of shipbrokers or shipvaluers nominated by the Borrower and approved by the Agent (acting on the instructions of the Majority Lenders) or failing such nomination and approval, appointed by the Agent (acting on such instructions) in its sole discretion (each such valuation to be made without, unless reasonably required by the Agent, physical inspection and on the basis of a sale for prompt delivery for cash at arms length on normal commercial terms as between a willing buyer and a willing seller without taking into account the benefit of any charterparty or other engagement concerning the Vessel). The first such valuations shall be obtained on or about thirty (30) days prior to the Delivery Date in respect of a Vessel and thereafter they shall be obtained within fifteen (15) days of a request from the Agent (but at intervals no more frequently than annually at the Borrowers expense unless an Event of Default has occurred and is continuing). The average of the valuations shall constitute the value of the Vessel for the purposes of this Clause 10.17. |
9
Definition/Clause | Amendment | |||
Clause 6.1.17 | except with the prior consent of the Agent (acting on the instructions of the Majority Lenders) not: | |||
|
||||
|
(a) | permit any person other than the Manager to be the manager of, including providing crewing services to, the Vessel; | ||
|
||||
|
(b) | permit any amendment to be made to the terms of the Management Agreement in respect of the Vessel unless the amendment is advised by the Owners tax counsel or is deemed necessary by the parties thereto but provided that the amendment does not imperil the security to be provided pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its obligations under the Transaction Documents; or | ||
|
||||
|
(c) | permit the Vessel to be employed other than within the NCL or NCL America brand (as applicable). |
10
Definition/Clause | Amendment | |
Clause 4
|
Revenue and Operating Costs | |
|
||
|
Upon the Agents first written request, to provide to the Agent for information purposes only the regular financial statements including balance sheets, income statement and management reports of revenues and expenses compared to budget received pursuant to section [5.3] of the Management Agreement. | |
|
||
Schedule 1, Acknowledgement of
Notice of Assignment, Clauses
6.1 and 6.2
|
upon the Agents first written request, the regular financial statements including balance sheets, income statement and management reports of revenues and expenses compared to budget more particularly described in section [5.3] of the Management Agreement; | |
|
||
Schedule 1, Acknowledgement of
Notice of Assignment, Clause 8
|
agree not to make or permit to be made any amendment or modification to the terms of the Management Agreement without the prior written consent of the Agent, unless such amendment or modification thereto is advised by the Owners tax counsel or is deemed necessary by the parties thereto to reflect the prevailing circumstances, provided always that no such amendment shall imperil the security to be provided pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its obligations under the Transaction Documents (as defined in the Facility Agreement); |
11
TO:
|
DnB NOR BANK ASA | |
|
Stranden 21 | |
|
NO-0021 Oslo | |
|
Norway | |
|
||
|
Attn : Mr Jon Flovik |
By:
|
[ ] | |||
Chief Financial Officer |
Dated
:
|
20[ ] |
12
Clause (of Facility | ||||||||
Agreement) | as of [ | ] | Required Covenants | |||||
10.3.1/ 10.3.2(b)** | Free Liquidity | A | A> [**] [Confidential Treatment] (11.3.1)** | |||||
A> [**] [Confidential Treatment] (11.3.2(b))** | ||||||||
|
||||||||
10.3.2(a) | Consolidated EBITDA: | B | > [**] [Confidential Treatment] | |||||
|
||||||||
|
Consolidated Debt Service | C | ||||||
|
||||||||
10.3.3 | Total Net Funded Debt: | D | < [**] [Confidential Treatment] | |||||
|
||||||||
|
Total Capitalisation | E | ||||||
|
||||||||
|
Consolidated EBITDA | |||||||
|
Consolidated Net Income (loss) | x | ||||||
(Deduct)/Add:
|
(Gain)/Loss on sale of assets or reserves | x | ||||||
Add:
|
Consolidated Interest Expense | x | ||||||
Add:
|
Depreciation and amortisation of assets | x | ||||||
Add:
|
Impairment charges | x | ||||||
(Deduct)/Add:
|
Other non-cash charges (gains) | x | ||||||
Add:
|
Deferred income tax expense | x | ||||||
|
||||||||
|
Consolidated EBITDA | x | B | |||||
|
||||||||
|
Consolidated Debt Service
Principal paid/payable (excluding balloon payments, voluntary prepayments/repayments on sale/total loss of an NCLC Fleet vessel) |
x |
||||||
Add:
|
Consolidated Interest Expense | x | ||||||
|
Distributions | x | ||||||
|
Rent under capitalised leases | x | ||||||
|
||||||||
|
Consolidated Debt Service | x | C | |||||
|
||||||||
|
Total Net Funded Debt
Indebtedness for Borrowed Money |
x | ||||||
Add:
|
Guarantees of non-NCLC Group members obligations | x | ||||||
|
||||||||
|
||||||||
|
x | |||||||
|
||||||||
Deduct:
|
Cash Balance | (x | ) | |||||
|
||||||||
|
Total Net Funded Debt | (x | ) | D | ||||
|
||||||||
|
Total Capitalisation | |||||||
|
Total Net Funded Debt | x | ||||||
Add:
|
Consolidated stockholders equity | x | ||||||
|
||||||||
|
Total Capitalisation | x | E | |||||
|
13
[
|
] |
[ ]
|
||||
Chief Financial Officer | ||||
NCL CORPORATION LTD. |
Dated:
|
20[ ] |
** | Evidence satisfactory to the Agent of A at all times during the relevant period shall be provided together with this statement |
14
15
Clause | Page | |||||
1.
|
DEFINITIONS AND CONSTRUCTION | 2 | ||||
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||||||
2.
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AVAILABILITY OF THE LOAN | 9 | ||||
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3.
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DRAWING | 9 | ||||
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||||||
4.
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REPAYMENT OF LOAN AND PAYMENT OF INTEREST | 15 | ||||
|
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5.
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CLAIMS OR DEFENCES MAY NOT BE OPPOSED TO THE LENDERS | 16 | ||||
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6.
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COFACE PREMIUM | 16 | ||||
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7.
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FEES | 16 | ||||
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8.
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TAXES, INCREASED COSTS, COSTS AND RELATED CHARGES | 17 | ||||
|
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9.
|
REPRESENTATIONS AND WARRANTIES | 19 | ||||
|
||||||
10.
|
UNDERTAKINGS | 25 | ||||
|
||||||
11.
|
PREPAYMENT | 38 | ||||
|
||||||
12.
|
INTEREST ON LATE PAYMENTS | 39 | ||||
|
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13.
|
ACCELERATION EVENTS OF DEFAULT | 39 | ||||
|
||||||
14.
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MANDATORY PREPAYMENT | 44 | ||||
|
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15.
|
CURRENCY OF PAYMENT | 45 | ||||
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16.
|
SECURITY | 45 | ||||
|
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17.
|
APPLICATION OF SUMS RECEIVED | 45 | ||||
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18.
|
CHANGES TO THE LENDERS | 46 | ||||
|
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19.
|
CHANGES TO THE OBLIGORS | 49 | ||||
|
||||||
20.
|
ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS | 49 | ||||
|
||||||
21.
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES | 54 | ||||
|
||||||
22.
|
SHARING AMONG THE FINANCE PARTIES | 54 | ||||
|
||||||
23.
|
PAYMENT MECHANICS | 55 | ||||
|
||||||
24.
|
GOVERNING LAW | 57 | ||||
|
||||||
25.
|
ENFORCEMENT | 57 | ||||
|
||||||
26.
|
APPENDICES | 58 | ||||
|
||||||
27.
|
NOTICES | 58 | ||||
|
||||||
28.
|
MISCELLANEOUS | 58 | ||||
|
||||||
29.
|
COMING INTO FORCE | 59 |
(1) | F3 ONE, LTD. , a company incorporated in and existing under the laws of Bermuda with registration number EC38769 and with its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda (the Borrower ); | |
(2) | THE SEVERAL BANKS , particulars of which are set out in Appendix II as lenders (the Original Lenders ); | |
(3) | THE SEVERAL BANKS , particulars of which are set out in Appendix II as mandated lead arrangers (the Mandated Lead Arrangers ); and | |
(4) | BNP PARIBAS as agent for the lenders (the Agent ). |
(A) | A shipbuilding contract was signed as of 7 September 2006 (the Building Contract ), between the Borrower and Aker Yards S.A. (the Builder ) for the design, construction and delivery of a two thousand one hundred (2,100) passenger cabin cruise vessel having hull no. C33, specification hull no. [**] [Confidential Treatment] dated 7 September 2006, to be ready for delivery on 16 November 2009 (the Vessel ). | |
(B) | The contract price of the Vessel is seven hundred and thirty five million euro (EUR735,000,000) (subject to adjustment in accordance with the terms of the Building Contract) (the Contract Price ), payable at the times and in the manner specified in the Building Contract. The terms of payment of the Contract Price are as follows: |
(i) | [**] [Confidential Treatment] payable within three (3) Working Days (as defined in the Building Contract) after the Effective Date (as defined in the Building Contract); | ||
(ii) | [**] [Confidential Treatment] payable on first steel cutting but not before [**] [Confidential Treatment]; | ||
(iii) | [**] [Confidential Treatment] payable on completion of keel laying but not before [**] [Confidential Treatment]; | ||
(iv) | [**] [Confidential Treatment] payable on the date the Vessel is launched into the water at the yard of the Builder but not before [**] [Confidential Treatment]; and | ||
(v) | the remainder payable upon delivery and acceptance of the Vessel. |
(C) | The Contract Price may be increased or decreased from time to time with respect to certain modifications to the Building Contract, the plans or the specification (the Change Orders ). |
(D) | The Lenders agree to make available to the Borrower a loan facility on the terms and conditions set out herein for the purpose of assisting the Borrower to finance part of the Contract Price (including the amount of the Change Orders) and the related Coface Premium. |
1. | DEFINITIONS AND CONSTRUCTION | |
1.1 | Definitions | |
In this Agreement (including the Recitals) and the Appendices (all of which form an integral part of this Agreement) the following expressions shall have the meanings set out opposite them below. | ||
Affiliate means, with respect to any person, any other person controlling, controlled by or under common control with, such person and for purposes of this definition, control (including, with correlative meanings, the terms controlling , controlled by and under common control with ), as applied to any person, means the possession, directly or indirectly, of the power to vote ten per cent. (10%) or more of the securities having voting power for the election of directors of such person, or otherwise to direct or cause the direction of the management and policies of that person, whether through the ownership of voting securities or by contract of otherwise. | ||
Annex VI means Annex VI (Regulations for the Prevention of Air Pollution from Ships) to the International Convention for the Prevention of Pollution from Ships 1973 (as modified in 1978 and 1997). | ||
Assignment of Earnings means an assignment to be entered into between the Borrower and the Finance Parties and to be in the agreed form. | ||
Assignment of Insurances means an assignment to be entered into between the Borrower, the Manager, if applicable, and the Finance Parties and to be in the agreed form. | ||
Assignment of Management Agreement means an assignment to be entered into between the Borrower and the Finance Parties and to be in the agreed form. | ||
Assignment of Warranty Rights means an assignment to be entered into between the Borrower and the Finance Parties with respect to the Borrowers rights under the post-delivery warranty given by the Builder under the Building Contract. | ||
Availability Termination Date means the date falling [**] [Confidential Treatment] days (being the period stipulated in article 9, clause 2.1(i)(b) of the Building Contract) after [**] [Confidential Treatment]. | ||
Building Contract means that certain contract entered into between the Borrower and the Builder dated as of 7 September 2006, as from time to time amended, in respect of the design, construction and delivery of the Vessel. | ||
Builder means Aker Yards S.A., a company incorporated in France and having its principal office at Avenue Bourdelle B.P. 90180, 44613 Saint-Nazaire Cedex, France, Republic of France. | ||
Business Day means a full day on which commercial banks are open for business and dealing in deposits in London, New York City and Paris. | ||
Certified Copy means, in relation to any document delivered or issued by or on behalf of any company, a copy of such document certified as a true, complete and up-to-date copy of the original by any of the directors or the secretary or assistant secretary or any attorney-in-fact for the time being of that company. |
-2-
Change Order Amount means the cost of the Change Orders. | ||
Change Orders means those certain change orders to the specifications of the Vessel as may be agreed to from time to time by the Borrower and the Builder, the net cost of which is payable at delivery. | ||
CIRR (Commercial Interest Reference Rate) means six point nought five per cent. (6.05%) per annum being the fixed rate in force for medium and long term export credits in Dollars according to the Organisation for Economic Co-operation and Development rules as determined by the competent French Authorities. | ||
Coface means Compagnie Française dAssurance pour le Commerce Extérieur a French société anonyme with its registered office at 12 Cours Michelet, La Défense, 92800 Puteaux, France, registered with the Registry of Commerce and Companies of Nanterre under number 552 069 791. | ||
Coface Insurance Policy means the insurance policy in respect of this Agreement to be issued by Coface for the benefit of the Lenders, in form and substance satisfactory to the Agent and the Lenders. | ||
Coface Premium means the amount payable by the Borrower to Coface through the Agent on the Delivery Date in respect of the Coface Insurance Policy which shall be [**] [Confidential Treatment] of the Total Financed Contract Price. | ||
Commitment means: |
(a) | in relation to an Original Lender, [**] [Confidential Treatment] of the Maximum Loan Amount and the amount of any other Commitment transferred to it under this Agreement; and | ||
(b) | in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement, |
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(a) | any Original Lender; and | ||
(b) | any bank or financial institution which has become a Party in accordance with Clause 18, |
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(a) | any Encumbrance created by or pursuant to the Security Documents; and | ||
(b) | liens on the Vessel up to an aggregate amount at any time not exceeding ten million Dollars (USD10,000,000) for current crews wages and salvage and liens incurred in the ordinary course of trading the Vessel; and |
(c) | any deposits or pledges to secure the performance of bids, tenders, bonds or contracts; | ||
(d) | any other Encumbrance notified by any of the Obligors to the Agent prior to the date hereof; | ||
(e) | any Encumbrance in respect of existing Financial Indebtedness of a person which becomes a Subsidiary of the Guarantor or is merged with or into the Guarantor or any of its Subsidiaries; | ||
(f) | liens on assets leased, acquired or upgraded after the date hereof or assets newly constructed or converted after the date hereof provided that (i) such liens secure Financial Indebtedness otherwise permitted under this Agreement (ii) such liens are incurred within one (1) year following such lease, acquisition, upgrade, construction or conversion and (iii) the Financial Indebtedness secured by such liens does not exceed the cost of such upgrade or the cost of such assets acquired or leased; | ||
(g) | statutory and other similar liens arising in the ordinary course of business unrelated to Financial Indebtedness and securing obligations not yet delinquent |
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or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established; and | |||
(h) | liens arising out of the existence of judgments or awards in respect of the Guarantor or any of its Subsidiaries, |
(a) | the Financed Contract Price; and |
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(b) | the Financed Change Order Amount. |
(a) | in the case of an actual total loss of the Vessel, the actual date on which the Vessel was lost or, if such date is not known, the date on which the Vessel was last reported; or | ||
(b) | in the case of a constructive total loss of the Vessel, or in the case of a compromised or arranged total loss of the Vessel, the date of the event giving rise to the claim for such constructive total loss or to the claim for a compromised or arranged total loss; or | ||
(c) | in the case of a Compulsory Acquisition on the date of the Compulsory Acquisition. |
(a) | the proposed Transfer Date specified in the Transfer Certificate; and | ||
(b) | the date on which the Agent executes the Transfer Certificate. |
1.2 | Construction | |
References in this Agreement to a document in the agreed form are to the form of the relevant document which is attached to the security letter of the same date as this Agreement or to such other form as the parties hereto may from time to time agree, subject to modification in accordance with the provisions of the security letter. | ||
A person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement. | ||
A provision of law including but without limitation a regulation is a reference to that provision or regulation as amended or re-enacted from time to time and a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation. |
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2. | AVAILABILITY OF THE LOAN | |
2.1 | Commitment | |
Each of the Lenders shall (in proportion to its share of the Total Commitments) make available to the Borrower a loan in a maximum amount of the counter value in Dollars of six hundred and two million six hundred and forty one thousand two hundred euro (EUR602,641,200) intended to: |
2.1.1 | be paid to the Builder up to a maximum amount of five hundred and eighty eight million euro (EUR588,000,000) corresponding to eighty per cent. (80%) of the Contract Price of the Vessel prior to any Change Order; | ||
2.1.2 | reimburse the Agent up to an amount of the counter value in Dollars of [**] [Confidential Treatment] corresponding to [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of the related Coface Premium payable to Coface. |
2.1.3 | up to an amount of the counter value in Dollars of [**] [Confidential Treatment] being [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of the Financed Contract Price) to pay to the Builder up to [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of the Change Order Amount; and | ||
2.1.4 | up to an amount of the counter value in Dollars of [**] [Confidential Treatment] to reimburse the Agent [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of the related Coface Premium payable to Coface. |
2.2 | Purpose |
3. | DRAWING | |
3.1 | Conditions precedent | |
The Borrower may only draw under the Loan when the following conditions have been fulfilled to the satisfaction of the Lenders and provided no Event of Default shall have occurred and remains unremedied or be likely to occur: |
3.1.1 | No later than the date of this Agreement : |
(a) | Receipt by the Agent of an opinion of legal counsel to the Lenders as to Bermudan law, together with the corporate documentation of the Borrower supporting the opinion, including but without limitation the Memorandum of Association and Bye-laws as filed with the competent authorities and a certificate of a competent officer of the Borrower |
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containing specimen signatures of the persons authorised to sign the documents on behalf of the Borrower, to the effect that: |
(i) | the Borrower has been duly organized and is validly existing as a company under the laws of Bermuda; | ||
(ii) | this Agreement falls within the scope of the Borrowers corporate purpose as defined by its Memorandum of Association and Bye-laws; | ||
(iii) | the Borrowers representatives were at the date of this Agreement fully empowered to sign this Agreement; | ||
(iv) | either all administrative requirements applicable to the Borrower (whether in Bermuda or elsewhere) concerning the transfer of funds abroad and acquisitions of Dollars to meet its obligations hereunder have been complied with, or that there are no such requirements; and | ||
(v) | this Agreement is the legal, valid and binding obligations of the Borrower enforceable in accordance with their terms (containing such exceptions as are standard for opinions of this type). |
(b) | Receipt by the Agent of an opinion of legal counsel to the Agent as to English law confirming that the obligations of the Borrower under this Agreement are legally valid and binding obligations enforceable by the relevant Finance Parties in the English courts. | ||
(c) | Receipt by the Agent of a Certified Copy of the executed Building Contract. | ||
(d) | Receipt by the Agent of a confirmation from Clifford Chance Secretaries Limited that it will act for the Borrower as agent for service of process in England in respect of this Agreement. |
3.1.2 | No later than ten (10) Business Days after the date of this Agreement : |
(a) | Receipt by the Agent of an opinion of legal counsel to the Lenders as to Bermudan law, together with the corporate documentation of the Guarantor supporting the opinion, including but without limitation the Memorandum of Association and Bye-laws as filed with the competent authorities and a certificate of a competent officer of the Guarantor containing specimen signatures of the persons authorised to sign the documents on behalf of the Guarantor, to the effect that: |
(i) | the Guarantor has been duly organized and is validly existing as a company under the laws of Bermuda; | ||
(ii) | the Guarantee falls within the scope of the Guarantors corporate purpose as defined by its Memorandum of Association and Bye-laws; | ||
(iii) | the Guarantors representative was at the date of the Guarantee fully empowered to sign the Guarantee; | ||
(iv) | either all administrative requirements applicable to the Guarantor (whether in Bermuda or elsewhere) concerning the transfer of funds |
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abroad and acquisitions of Dollars to meet its obligations under the Guarantee have been complied with, or that there are no such requirements; and | |||
(v) | the Guarantee is the legal, valid and binding obligations of the Guarantor enforceable in accordance with their terms (containing such exceptions as are standard for opinions of this type). |
(b) | Receipt by the Agent of the executed Guarantee and a statement confirming that the Guarantor is in compliance with its obligations under clauses 11.1 and 11.3 of the Guarantee. The statement shall be signed by the chief financial officer of the Group (as such term is defined in clause 11.4 of the Guarantee), be in the form of schedule 1 to the Guarantee and be for the financial quarter ending 30 June 2006. | ||
(c) | Receipt by the Agent of an opinion of legal counsel to the Agent as to English law confirming that the obligations of the Guarantor under the Guarantee are legally valid and binding obligations enforceable by the relevant Finance Parties in the English courts. | ||
(d) | Receipt by the Agent of a confirmation from Clifford Chance Secretaries Limited that it will act for the Guarantor as agent for service of process in England in respect of the Guarantee. |
3.1.3 | No later than three (3) months before the Intended Delivery Date , receipt by the Agent of notification from the Borrower of its preferred Maritime Registry. | ||
3.1.4 | On the date falling ninety (90) days before the Intended Delivery Date and on each subsequent date prior to the Drawdown Date on which a statement in the form of schedule 1 to the Guarantee is to be received by the Agent pursuant to clause 9.2.5 of the Guarantee , receipt by the Agent of a statement confirming that the Guarantor is in compliance with its obligations under clauses 11.1 and 11.3 of the Guarantee. The statement shall be signed by the chief financial officer of the Group (as such term is defined in clause 11.4 of the Guarantee), be in the form of schedule 1 to the Guarantee and be for the last financial quarter in respect of which the Guarantor is obliged to provide such a statement pursuant to clause 9.2.5 of the Guarantee. | ||
3.1.5 | No later than sixty (60) days before the Intended Delivery Date , receipt by the Agent of notification from the Borrower of the Intended Delivery Date. | ||
3.1.6 | No later than ten (10) Business Days before the Intended Delivery Date , receipt by the Agent of insurance documents in form and substance satisfactory to the Lenders confirming that the Insurances have been effected and will be in full force and effect on the Delivery Date. | ||
3.1.7 | No later than five (5) Business Days before the Intended Delivery Date , receipt by the Agent of: |
(a) | the Drawdown Notice from the Borrower, signed by a duly authorised signatory of the Borrower, specifying the amount of the Loan to be drawn down; | ||
(b) | a Certified Copy of each of the Change Orders and of the power of attorney pursuant to which the authorised signatory of the Borrower signed the Drawdown Notice and a specimen of his signature; and |
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(c) | a copy of the notice of delivery given by the Builder to the Borrower pursuant to and in accordance with article 7, clause 1.1 of the Building Contract. |
3.1.8 | No later than the Delivery Date : |
(a) | Receipt by the Agent of a legal opinion of counsel to the Lenders as to Bermudan law together with the corporate documentation of the Borrower and the Manager supporting such opinions, including but without limitation, in the case of the Manager, the Memorandum of Association and Bye-laws as filed with the competent authorities and a certificate of a competent officer of the Borrower and the Manager containing specimen signatures of the persons authorised to sign the documents on behalf of the Borrower and the Manager, confirming that: |
(i) | the Lenders may continue to rely on the legal opinion given pursuant to Clause 3.1.1(a)(i); | ||
(ii) | the Mortgage, the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement fall within the scope of the Borrowers corporate purpose as defined by its Memorandum of Association and Bye-laws and are binding on it; | ||
(iii) | the Assignment of Insurances (if applicable) and the acknowledgement of the notice of assignment of the Management Agreement fall within the scope of the Managers corporate purpose as defined by its Memorandum of Association and Bye-laws and are binding on it; and | ||
(iv) | the Borrowers representatives are fully empowered to sign the Protocol of Delivery and Acceptance, the Mortgage, the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement and the Managers representatives are fully empowered to sign the Assignment of Insurances (if applicable) and the acknowledgement of the notice of assignment of the Management Agreement. |
(b) | Receipt by the Agent of evidence of payment to the Builder of: |
(i) | the four (4) pre-delivery instalments of the Contract Price; and | ||
(ii) | any other part of the Contract Price as at the Delivery Date not being financed hereunder. |
(c) | Evidence that: |
(i) | the Vessel is at least provisionally registered in the name of the Borrower in the Maritime Registry; | ||
(ii) | title to the Vessel is held by the Borrower free of all Encumbrances other than any maritime lien in respect of crews wages and trade debts arising out of equipment, consumable and other stores placed on board the Vessel prior to or concurrently with delivery, none of which is overdue; |
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(iii) | the Mortgage has been duly registered in the Maritime Registry and constitutes a first priority security interest over the Vessel and that all taxes and fees payable to the Maritime Registry in respect of the Vessel have been paid in full. |
(d) | Receipt by the Agent of a Certified Copy of a classification certificate (or interim classification certificate) showing the Vessel to be classed in accordance with Clause 9.4.3. | ||
(e) | Receipt by the Agent of duly executed originals of the Mortgage, the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement together with relevant notices of assignment and the acknowledgement of the notice of assignment of the Management Agreement. | ||
(f) | Receipt by the Agent of all amounts which are due and payable hereunder by the Borrower on or prior to the Delivery Date. | ||
(g) | Receipt by the Agent of a legal opinion of counsel to the Lenders as to the law of the Maritime Registry confirming: |
(i) | the valid registration of the Vessel in the Maritime Registry; and | ||
(ii) | the Mortgage over the Vessel has been validly registered in the Maritime Registry. |
(h) | Receipt by the Agent of an opinion of legal counsel to the Agent as to English law confirming that the obligations of the Borrower under the deed of covenants constituting part of the Mortgage (if applicable), the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement are legally valid and binding obligations enforceable by the relevant Finance Parties in the English courts. | ||
(i) | Receipt by the Agent of a certificate from the Borrower, signed by an authorised representative of the Borrower, attesting that the representations and warranties contained in Clause 9 are true and correct as of the Delivery Date in consideration of the facts and circumstances existing as of the Delivery Date. | ||
(j) | Receipt by the Agent of the documents mentioned in Appendix I. | ||
(k) | Receipt by the Agent of a Certified Copy of the executed Management Agreement. | ||
(l) | Receipt by the Agent of a Certified Copy of the carrier initiative agreement executed pursuant to Clause 10.16, any current certificate of financial responsibility in respect of the Vessel issued under OPA, a valid Safety Management Certificate (or interim Safety Management Certificate) issued to the Vessel in respect of its management by the Manager pursuant to the ISM Code, a valid Document of Compliance (or interim Document of Compliance) issued to the Manager in respect of ships of the same type as the Vessel pursuant to the ISM Code, a valid International Ship Security Certificate issued to the Vessel in accordance with the ISPS Code and a valid IAPPC issued to the Vessel in accordance with Annex VI. |
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(m) | Receipt by the Agent of a Certified Copy of the power of attorney pursuant to which the authorised signatory(ies) of the Borrower signed the documents referred to in this Clause 3.1.6 and to which the Borrower is a party and a specimen of his or their signature(s). | ||
(n) | Receipt by the Agent of a confirmation from Clifford Chance Secretaries Limited that it will act for each of the relevant Obligors as agent for service of process in England in respect of the deed of covenants constituting part of the Mortgage (if applicable), the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement. | ||
(o) | The Coface Insurance Policy documentation relating to the transactions contemplated by this Agreement has been received by the Agent and remains in full force and effect, the Agent having notified the Borrower of the issue of the Coface Insurance Policy in form and substance satisfactory to the Lenders as soon as practicable after its issue. |
3.2 | Borrowers irrevocable payment instructions | |
The Lenders shall not be obliged to fulfil their obligation to make the Loan available other than by paying the Builder the Total Financed Contract Price (or (as the context may require) the amount thereof drawn down) on behalf of and in the name of the Borrower and by reimbursing the Agent for the related Coface Premium. | ||
The Borrower hereby instructs the Lenders in accordance with this Clause 3.2: |
3.2.1 | to pay to the Builder: |
(a) | the amount in euro remaining due under the Building Contract up to an amount equal to the lesser of five hundred and eighty eight million euro (EUR588,000,000) and eighty per cent. (80%) of the Contract Price of the Vessel prior to any Change Order; and | ||
(b) | subject to Clause 2.2, the amount in euro up to the lesser of fifty eight million eight hundred thousand euro (EUR58,800,000) and eighty per cent. (80%) of the Change Order Amount capped at [**] [Confidential Treatment] per cent [**] [Confidential Treatment] of the Financed Contract Price; and |
3.2.2 | to reimburse the Agent, by drawing under the Loan, the related Coface Premium. |
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4. | REPAYMENT OF LOAN AND PAYMENT OF INTEREST | |
The Borrower shall repay to the Lenders the principal amount of the Loan drawn down under this Agreement together with interest on the Loan at the CIRR from the Drawdown Date by twenty four (24) consecutive equal half yearly instalments. The first instalment of principal and interest shall be due six (6) months after the Delivery Date and the final instalment shall be due on the Termination Date together with all other sums due under this Agreement. The interest shall be calculated on the actual number of days elapsed divided by three hundred and sixty (360). | ||
The amount of each instalment of principal and interest will be calculated by the Agent following the Drawdown Date. The Agent shall deliver to the Borrower and the Lenders as soon as practicable following such calculation and in any event no later than ten (10) Business Days after the Drawdown Date, a repayment schedule setting out the dates and the amounts of the instalments up to and including the Termination Date. | ||
The repayment schedule shall be sent by fax and, in the case of the Borrower, by international express courier. | ||
In the absence of manifest error, the repayment schedule will constitute an unconditional and irrevocable undertaking by the Borrower to pay the Lenders the amounts of principal and interest set out therein. | ||
The Borrower reserves the right to inform the Agent within ten (10) Business Days of receipt of the repayment schedule by courier if it contains a material error and to request its correction. |
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5. | CLAIMS OR DEFENCES MAY NOT BE OPPOSED TO THE LENDERS | |
The Borrower may not escape liability under the terms of this Agreement by opposing to the Lenders claims or defences of any kind whatsoever arising under the Building Contract, and in particular from its performance, or from any other relationship between the Borrower and the Builder. |
6. | COFACE PREMIUM | |
The Coface Premium is due and payable on or prior to the Drawdown Date and proportionally to the amount of the Loan drawn down under this Agreement. A minimum non-refundable premium, being the counter value in Dollars of [**] [Confidential Treatment] shall be paid to Coface upon signature of the Coface Insurance Policy. Otherwise, no Coface Premium is due if the Loan is not drawn down. Except as otherwise stated below in the case of a prepayment, the Coface Premium is not refundable for any reason whatsoever. | ||
The Borrower has requested and the Lenders have agreed to finance [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of the Coface Premium payable under this Agreement in accordance with Clauses 2.1.2 and 2.1.4 up to the amount being the counter value in Dollars of [**] [Confidential Treatment]. | ||
Consequently, the Borrower hereby irrevocably instructs the Agent to pay the Coface Premium to Coface on the Borrowers behalf and the financing of such payment shall be made by drawing under the Loan in accordance with Clauses 2.1.2 and 2.1.4 of this Agreement. Notwithstanding any other provision of this Agreement, the Borrower acknowledges that the obligation of the Borrower to reimburse the Lenders for the full amount of the Coface Premium referred to in this Agreement as and when it arises is absolute and unconditional. | ||
The Coface Premium financed by the Loan will be repayable in any event by the Borrower to the Lenders in the manner specified in Clause 4 and under any and all circumstances including but without limitation in the event of prepayment or acceleration of the Loan. | ||
If the Loan is prepaid in whole or in part by the Borrower and if no amounts are then due and unpaid by the Borrower to the Finance Parties, the Agent will, on receipt from Coface, refund to the Borrower the portion of the Coface Premium reimbursed by Coface. If there is an amount due and unpaid by the Borrower to the Finance Parties, the Agent shall apply any amount received from Coface in accordance with Clause 17. | ||
Any refund of the Coface Premium will not exceed eighty per cent. (80%) of the amount of the Coface Premium for the period from the prepayment date to the Termination Date. |
7. | FEES | |
The following fees shall be paid to the Agent by the Borrower as required hereunder: |
7.1.1 | For the Mandated Lead Arrangers, an arrangement fee in Dollars equal to [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of the Maximum Loan Amount (converted from euro into Dollars at the official daily fixing rate (EUR/USD) of the European Central Bank quoted on Reuters page ECB37 at 11.00 a.m. Paris time on the date of this Agreement) payable: |
(a) | as to [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of such fee amount within ten (10) Business Days after the date of this Agreement; and |
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(b) | unless this Agreement is terminated pursuant to Clause 29, as to [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of such fee amount on the first anniversary of the date of this Agreement. |
7.1.2 | For the Lenders, a commitment fee in Dollars for the period from the date of this Agreement to the Delivery Date of the Vessel, or the date of receipt by the Agent of the written termination notice sent by the Borrower as described in Clause 29, whichever is the earliest, computed at the rate of: |
(a) | [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] per annum for the first two (2) years after the date of this Agreement; and | ||
(b) | [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] per annum thereafter. |
7.1.3 | For the Agent, an annual agency fee in Dollars of [**] [Confidential Treatment] (converted from euro into Dollars at the official daily fixing rate (EUR/USD) of the European Central Bank quoted on Reuters page ECB37 at 11.00 a.m. Paris time on the date of this Agreement and, unless this Agreement is terminated pursuant to Clause 29, on each anniversary date thereof) shall be paid within ten (10) Business Days of the date of this Agreement and, unless this Agreement is terminated pursuant to Clause 29, on or before each anniversary date thereof until total repayment of the Loan. |
8. | TAXES, INCREASED COSTS, COSTS AND RELATED CHARGES | |
8.1 | All Taxes legally payable in France as a consequence of the signature or performance of this Agreement shall be paid by the Lenders. | |
8.2 | All Taxes legally payable outside France (other than taxes payable by each of the Lenders on its overall net income) as a consequence of the signature or performance of this Agreement shall be paid by the Borrower. In consequence, all payments of principal and interest, interest on late payments, compensation, costs, fees and related charges, due in connection with this Agreement shall be made without any deduction or withholding in respect of Taxes. The Borrower therefore hereby agrees expressly that if for any reason full payment of the above amounts is not made, it will immediately pay the Lenders the sums necessary to compensate exactly the effect of the deductions or withholdings made in respect of Taxes. If the Borrower fails to perform this obligation, the Lenders shall be entitled, in accordance with Clause 13, either not to make available the Loan or, as the case may require, to require immediate repayment of the Loan. | |
If an additional payment is made under this Clause and any Lender or the Agent on its behalf determines that it has received or been granted a credit against or relief of or calculated with reference to the deduction or withholding giving rise to such additional |
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payment, such Lender or the Agent (as the case may be) shall, to the extent that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment and provided that it has received the cash benefit of such credit, relief or remission, pay to the Borrower such amount as such Lender or the Agent shall in its reasonable opinion have concluded to be attributable to the relevant deduction or withholding. Any such payment shall be conclusive evidence of the amount due to the Borrower hereunder and shall be accepted by the Borrower in full and final settlement of its rights of reimbursement hereunder in respect of such deduction or withholding. Nothing herein contained shall interfere with the right of any Lender and the Agent to arrange their respective tax affairs in whatever manner they think fit. | ||
8.3 | If after the date of this Agreement by reason of: |
8.3.1 | any change in law or in its interpretation or administration; and/or | ||
8.3.2 | compliance with any request from or requirement of any central bank or other fiscal, monetary or other authority including but without limitation the Basle Committee on Banking Regulations and Supervisory Practices whether or not having the force of law: |
(a) | any of the Lenders incurs a cost as a result of its performing its obligations under this Agreement and/or its advancing its Commitment hereunder; or | ||
(b) | there is any increase in the cost to any of the Lenders of funding or maintaining all or any of the advances comprised in a class of advances formed by or including its Commitment advanced or to be advanced by it hereunder; or | ||
(c) | any of the Lenders incurs a cost as a result of its having entered into and/or its assuming or maintaining its commitment under this Agreement; or | ||
(d) | any of the Lenders becomes liable to make any payment on account of Tax or otherwise (other than Tax on its overall net income) on or calculated by reference to the amount of its Commitment advanced or to be advanced hereunder and/or any sum received or receivable by it hereunder; or | ||
(e) | any of the Lenders suffers any decrease in its rate of return as a result of any changes in the requirements relating to capital ratios, monetary control ratios, the payment of special deposits, liquidity costs or other similar requirements affecting that Lender, |
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8.4 | The Borrower undertakes to pay to the Agent, upon demand, all reasonable costs and expenses, duties and fees, including but without limitation agreed legal costs, out of pocket expenses and travel costs, incurred by the Mandated Lead Arrangers and the Original Lenders in connection with the negotiation, preparation and execution of all agreements, guarantees, security agreements and related documents entered into, or to be entered into, for the purpose of the transaction contemplated hereby as well as all costs and expenses, duties and fees incurred by the Lenders in connection with the registration, filing, enforcement or discharge of the said guarantees or security agreements, including without limitation the fees and expenses of legal advisers and insurance experts, the cost of registration and discharge of security interests and the related travel and out of pocket expenses; the Borrower further undertakes to pay to the Agent all costs, expenses, duties and fees incurred by the Lenders in connection with any variation of this Agreement and the related documents, guarantees and security agreements, any supplements thereto and waiver given in relation thereto, in connection with the enforcement or preservation of any rights under this Agreement and/or the related guarantees and security agreements, including in each case the fees and expenses of legal advisers, and in connection with the consultations or proceedings made necessary by the acts of, or failure to act on the part of, the Borrower. | |
8.5 | The Borrower undertakes to pay to the Agent, upon demand, any reasonable costs necessarily incurred by the Lenders in funding the Loan in the event that the Delivery Date is later than the Intended Delivery Date unless the Borrower has given the Agent at least three (3) Business Days notification of such delay in the Delivery Date. | |
9. | REPRESENTATIONS AND WARRANTIES | |
9.1 | Duration |
9.1.1 | The representations and warranties in Clause 9.2 are made on the date of this Agreement and shall be deemed to be repeated, with reference mutatis mutandis to the facts and circumstances subsisting, as if made on each day until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents. | ||
9.1.2 | The representations and warranties in Clause 9.3 are made on the date of this Agreement and shall be deemed to be repeated, with reference mutatis mutandis to the facts and circumstances subsisting, as if made on the date falling sixty (60) days before the Intended Delivery Date and thereafter on each day until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents. | ||
9.1.3 | The representations and warranties in Clause 9.4 are made on the Delivery Date and shall be deemed to be repeated, with reference mutatis mutandis to the facts and circumstances subsisting, as if made thereafter on each day until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents. |
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9.2 | Continuing representations and warranties | |
The Borrower represents and warrants to each of the Lenders that: |
9.2.1 | Status | ||
Each Obligor is a company duly organised, constituted and validly existing under the laws of the country of its incorporation, possessing perpetual corporate existence, the capacity to sue and be sued in its own name and the power to own and charge its assets and carry on its business as it is now being conducted. | |||
9.2.2 | Powers and authority | ||
Each of the Obligors has the power to enter into and perform this Agreement and those of the other Security Documents to which it is a party and the transactions contemplated hereby and thereby and has taken all necessary action to authorise the entry into and performance of this Agreement and such other Security Documents and such transactions. | |||
9.2.3 | Legal validity | ||
This Agreement and each other Transaction Document constitutes (or will constitute when executed) legal, valid and binding obligations of each Obligor expressed to be a party thereto enforceable in accordance with their respective terms and in entering into this Agreement and borrowing the Loan, the Borrower is acting on its own account. | |||
9.2.4 | Non-conflict with laws | ||
The entry into and performance of this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | the constitutional documents of any Obligor; or | ||
(c) | any agreement or document to which any Obligor is a party or which is binding upon such Obligor or any of its assets, |
nor result in the creation or imposition of any Encumbrance on an Obligor or its assets pursuant to the provisions of any such agreement or document, except for Permitted Liens. | |||
9.2.5 | Consents | ||
Except for: |
(a) | the filing of those Security Documents to be filed with the Registrar of Companies in Bermuda; and | ||
(b) | the registration of the Mortgage through the relevant authority of the Maritime Registry, |
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9.2.6 | Accuracy of information | ||
All information furnished by any Obligor relating to the business and affairs of any Obligor in connection with this Agreement and the other Transaction Documents was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading. | |||
9.2.7 | Full disclosure | ||
Each Obligor has fully disclosed to the Agent all facts relating to each Obligor which it knows or should reasonably know and which might reasonably be expected to influence the Lenders in deciding whether or not to enter into this Agreement. | |||
9.2.8 | Pari passu or priority status | ||
The claims of the Finance Parties against the Borrower under this Agreement will rank at least pari passu with the claims of all unsecured creditors of the Borrower (other than claims of such creditors to the extent that they are statutorily preferred) and in priority to the claims of any creditor of the Borrower who is also an Obligor. | |||
9.2.9 | Solvency | ||
The Borrower is and shall remain, after the advance to it of the Loan, solvent in accordance with the laws of Bermuda and the United Kingdom and in particular with the provisions of the Insolvency Act 1986 (as from time to time amended) and the requirements thereof. | |||
9.2.10 | Winding-up, etc. | ||
Subject to clause 10.6 of the Guarantee, neither the Borrower nor any other Obligor has taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against any of them for the reorganisation, winding-up, dissolution or for the appointment of a liquidator, administrator, receiver, administrative receiver, trustee or similar officer of any of them or any or all of their assets or revenues nor has it sought any other relief under any applicable insolvency or bankruptcy law. | |||
9.2.11 | Accounts | ||
The consolidated audited accounts of the Guarantor for the period ending on 31 December 2005 (which accounts have been prepared in accordance with GAAP) fairly represent the financial condition of the Guarantor as shown in such audited accounts. |
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9.2.12 | No immunity | ||
None of the Obligors nor any of their respective assets enjoys any right of immunity (sovereign or otherwise) from set-off, suit or execution in respect of their obligations under this Agreement or any of the other Transaction Documents or by any relevant or applicable law. | |||
9.2.13 | Ownership of shares | ||
All the shares in the Borrower and the Manager shall be legally and beneficially owned directly or indirectly by the Guarantor and such structure shall remain so throughout the Security Period. Further, no Event of Default has occurred under clause 11.2 of the Guarantee in respect of the ownership and/or control of the shares in the Guarantor. | |||
9.2.14 | Completeness of documents | ||
The copies of the Building Contract, the Management Agreement and any other relevant third party agreements including but without limitation the copies of any documents in respect of the Insurances delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and, subject to Clauses 10.14 and 10.25, no amendments thereto or variations thereof have been agreed nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | |||
9.2.15 | Money laundering | ||
Any borrowing by the Borrower under this Agreement, and the performance of its obligations under this Agreement and the other Transaction Documents, will be for its own account and will not involve any breach by it of any law or regulatory measure relating to money laundering as defined in Article 1 of the Directive (91/308/EEC) of the Council of the European Communities. |
9.3 | Semi-continuing representations and warranties | |
The Borrower represents and warrants to each of the Lenders that: |
9.3.1 | No default | ||
No event has occurred which constitutes a default under or in respect of any Transaction Document to which any Obligor or the Builder is a party or by which any Obligor or the Builder may be bound (including (inter alia) this Agreement) and no event has occurred which constitutes a default under or in respect of any agreement or document to which any Obligor is a party or by which any Obligor may be bound to an extent or in a manner which might have a material adverse effect on the ability of that Obligor to perform its obligations under the Transaction Documents to which it is a party. | |||
9.3.2 | No encumbrances | ||
None of the assets or rights of any Obligor is subject to any Encumbrance except Permitted Liens. |
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9.3.3 | Litigation | ||
No litigation, arbitration or administrative proceedings are current or pending or, to its knowledge, threatened, which might, if adversely determined, have a material adverse effect on the ability of an Obligor to perform its obligations under the Transaction Documents to which it is a party, save as disclosed by the Guarantor in its most recent US Securities Exchange Commission filing. | |||
9.3.4 | Tax liabilities | ||
To the best of its knowledge, each of the Obligors has complied with all taxation laws in all jurisdictions in which it is subject to Taxation and has paid all Taxes due and payable by it including but without limitation any disputed Taxes unless a sufficient reserve has been made pending resolution of the dispute and no material claims are being asserted against any of the Obligors with respect to Taxes, which might, if such claims were successful, have a material adverse effect on the ability of that Obligor to perform its obligations under the Transaction Documents to which it is a party. | |||
9.3.5 | Ownership of assets | ||
Each member of the Group has good and marketable title to all its assets which are reflected in the audited accounts referred to in Clause 9.2.11. | |||
9.3.6 | Place of business | ||
None of the Obligors has a place of business in any jurisdiction (except as already disclosed) which requires any of the Security Documents to be filed or registered in that jurisdiction to ensure the validity of the Security Documents to which it is a party. | |||
9.3.7 | Environment | ||
Each of the Obligors: |
(a) | is in compliance with all applicable federal, state, local, foreign and international laws, regulations, conventions and agreements relating to pollution prevention or protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, navigable waters, water of the contiguous zone, ocean waters and international waters), including without limitation, laws, regulations, conventions and agreements relating to: |
(i) | emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous materials, oil, hazard substances, petroleum and petroleum products and by-products ( Materials of Environmental Concern ); or | ||
(ii) | the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern (such laws, regulations, conventions and agreements the Environmental Laws ); |
(b) | has all permits, licences, approvals, rulings, variances, exemptions, clearances, consents or other authorisations required under applicable Environmental Laws ( Environmental Approvals ) and is in |
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compliance with all Environmental Approvals required to operate its business as presently conducted or as reasonably anticipated to be conducted; |
(c) | has not received any notice, claim, action, cause of action, investigation or demand by any other person, alleging potential liability for, or a requirement to incur, investigatory costs, clean-up costs, response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural resources damages, property damages, personal injuries, attorneys fees and expenses or fines or penalties, in each case arising out of, based on or resulting from: |
(i) | the presence or release or threat of release into the environment of any Material of Environmental Concern at any location, whether or not owned by such person; or | ||
(ii) | circumstances forming the basis of any violation, or alleged violation, of any Environmental Law or Environmental Approval ( Environmental Claim ); and |
there are no circumstances that may prevent or interfere with such full compliance in the future. | |||
There is no material Environmental Claim pending or threatened against any of the Obligors. | |||
There are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, emission, discharge or disposal of any Material of Environmental Concern, that could form the basis of any Environmental Claim against any of the Obligors. |
9.4 | Representations on the Delivery Date |
The Borrower further represents and warrants to each of the Lenders that on the Delivery Date the Vessel will be: |
9.4.1 | in its absolute and unencumbered ownership save as contemplated by the Security Documents; | ||
9.4.2 | at least provisionally registered in its name under the laws and flag of the Maritime Registry; | ||
9.4.3 | classed with the highest classification available for a vessel of its type free of all recommendations and qualifications with Det Norske Veritas; | ||
9.4.4 | operationally seaworthy and in compliance with all relevant provisions, regulations and requirements (statutory or otherwise) applicable to ships registered under the laws and flag of the Maritime Registry; | ||
9.4.5 | in compliance with the ISM Code, the ISPS Code and Annex VI; | ||
9.4.6 | insured in accordance with the provisions of Clause 10.20 and in compliance with the requirements therein in respect of such insurances; and | ||
9.4.7 | managed by the Manager on and subject to the terms set out in the Management Agreement. |
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10. | UNDERTAKINGS | |
10.1 | Duration |
10.1.1 | The undertakings in Clauses 10.2, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.13, 10.15, 10.17, 10.23, 10.24 and 10.25 shall remain in full force and effect until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents. | ||
10.1.2 | The undertakings in Clauses 10.12, 10.14, 10.16, 10.18, 10.19, 10.20, 10.21 and 10.22 shall apply with effect from, and shall remain in full force and effect after, the date falling sixty (60) days before the Intended Delivery Date until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents. |
10.2 | Information | |
The Borrower will provide to the Agent for the benefit of the Lenders (or will procure the provision of): |
10.2.1 | as soon as practicable (and in any event within one hundred and twenty (120) days after the close of each of its financial years) a Certified Copy of its unaudited accounts for that year and a Certified Copy of the audited accounts of the Guarantor and its consolidated Subsidiaries for that year (commencing with accounts made up to 31 December in the year in which the Drawdown Date occurs in the case of the Borrower and with accounts made up to 31 December 2005 in the case of the consolidated accounts of the Guarantor); | ||
10.2.2 | as soon as practicable (and in any event within sixty (60) days of the end of each quarter of each financial year) a copy of the unaudited consolidated accounts of the Guarantor for that quarter (commencing with unaudited accounts made up to 30 June 2006); | ||
10.2.3 | promptly, such further information in its possession or control regarding its financial condition and operations and those of any company in the Group as the Agent may request for the benefit of the Finance Parties; and | ||
10.2.4 | details of any material litigation, arbitration or administrative proceedings which affect any Obligor as soon as the same are instituted and served, or, to the knowledge of the Borrower, threatened (and for this purpose proceedings shall be deemed to be material if they involve a claim in an amount exceeding [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] or the equivalent in another currency). |
All accounts required under this Clause 10.2 shall be prepared in accordance with GAAP and shall fairly represent the financial condition of the relevant company. In this Clause 10.2 and in Clause 9.3.5 Group shall have the meaning ascribed to it in clause 11.4 of the Guarantee. |
10.3 | Notification of default | |
The Borrower will notify the Agent of any Event of Default forthwith upon becoming aware of the occurrence thereof. Upon the Agents request from time to time the Borrower will issue a certificate stating whether any Obligor is aware of the occurrence of any Event of Default. |
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10.4 | Consents and registrations | |
The Borrower will procure that (and will promptly furnish Certified Copies to the Agent on the request of the Agent of) all such authorisations, approvals, consents, licences and exemptions as may be required under any applicable law or regulation to enable it or any Obligor to perform its obligations under, and ensure the validity or enforceability of, each of the Transaction Documents are obtained and promptly renewed from time to time and will procure that the terms of the same are complied with at all times. Insofar as such filings or registrations have not been completed on or before the Drawdown Date the Borrower will procure the filing or registration within applicable time limits of each Security Document which requires filing or registration together with all ancillary documents required to preserve the priority and enforceability of the Security Documents. | ||
10.5 | Negative pledge | |
The Borrower will not create or permit to subsist any Encumbrance on the whole or any part of its present or future assets, except for the following: |
10.5.1 | Encumbrances created with the prior consent of the Lenders; or | ||
10.5.2 | Permitted Liens. |
10.6 | Disposals | |
Except with the prior consent of all the Lenders, the Borrower shall not, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of any of its assets except in the case of items being replaced or renewed provided that the net impact is not a reduction in the value of the Vessel. | ||
10.7 | Change of business | |
Except with the prior consent of the Agent, the Borrower shall not make or threaten to make any substantial change in its business as presently conducted, namely that of a single ship owning company for the Vessel, or carry on any other business which is substantial in relation to its business as presently conducted so as to affect, in the opinion of the Agent, the Borrowers ability to perform its obligations hereunder and the Borrower will procure that the other Obligors continue, throughout the Security Period, to perform their current business activities. | ||
10.8 | Mergers | |
Except with the prior consent of the Lenders, the Borrower will not enter into any amalgamation, restructure, substantial reorganisation, merger, de-merger or consolidation or anything analogous to the foregoing nor will it acquire any equity, share capital or obligations of any corporation or other entity. | ||
10.9 | Maintenance of status and franchises | |
The Borrower will do all such things as are necessary to maintain its corporate existence in good standing and will ensure that it has the right and is duly qualified to conduct its business as it is conducted in all applicable jurisdictions and will obtain and maintain all franchises and rights necessary for the conduct of its business. |
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10.10 | Financial records | |
The Borrower will keep proper books of record and account, in which proper and correct entries shall be made of all financial transactions and the assets, liabilities and business of the Borrower in accordance with GAAP. | ||
10.11 | Financial indebtedness and subordination of indebtedness |
10.11.1 | Otherwise than in the ordinary course of business as owner of the Vessel, except as contemplated by this Agreement and except any loan, advance or credit extended by the Guarantor or any member of the Group which is a wholly owned Subsidiary of the Guarantor, the Borrower will not create, incur, assume or allow to exist any financial indebtedness, enter into any finance lease or undertake any material capital commitment (including but not limited to the purchase of any capital asset). | ||
10.11.2 | The Borrower shall procure that any and all indebtedness (and in particular with any other Obligor) is at all times fully subordinated to the Security Documents and the obligations of the Borrower hereunder. Upon the occurrence of an Event of Default, the Borrower shall not make any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing such indebtedness. In this Clause fully subordinated shall mean that any claim of the lender against the Borrower in relation to such indebtedness shall rank after and be in all respects subordinate to all of the rights and claims of the Finance Parties under this Agreement and the other Security Documents and that the lender shall not take any steps to enforce its rights to recover any monies owing to it by the Borrower and in particular but without limitation the lender will not institute any legal or quasi-legal proceedings under any jurisdiction at any time against the Vessel, her Earnings or Insurances or the Borrower and it will not compete with the Finance Parties or any of them in a liquidation or other winding-up or bankruptcy of the Borrower or in any proceedings in connection with the Vessel, her Earnings or Insurances. |
10.12 | Pooling of earnings and charters | |
The Borrower will not enter into in respect of the Vessel, nor permit to exist: |
10.12.1 | any pooling agreement or other arrangement for the sharing of any of the Earnings or the expenses of the Vessel except with a member of the Group and provided that it does not adversely affect the rights of the Finance Parties under the Assignment of Earnings in the reasonable opinion of the Agent; or | ||
10.12.2 | any demise or bareboat charter; or | ||
10.12.3 | any charter whereunder two (2) months charterhire (or the equivalent thereof) is payable in advance in respect of the Vessel; or | ||
10.12.4 | any charter of the Vessel or contract of affreightment or employment which, with the exercise of options for extension, could be for a period longer than thirteen (13) months; or | ||
10.12.5 | any charter of the Vessel or contract of affreightment or employment whereunder the hire payable is below approximately the market rate prevailing when the Vessels letting or employment is fixed, |
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but if, with the prior written consent of the Agent, the Borrower enters into in respect of the Vessel a charter with a company outside the Group, the Borrower hereby undertakes to execute in favour of the Finance Parties an assignment of such charter and the Earnings therefrom such assignment to be in substantially the form of the Assignment of Earnings and as required by the Agent provided however that the Borrower may in respect of the Vessel enter into a bareboat charter in form approved by the Agent with any company which is a member of the Group provided that if so requested by the Agent and without limitation: |
10.12.6 | any such bareboat charterer shall enter into such deeds (including but not limited to a subordination and assignment deed), agreements and indemnities as the Agent shall in its sole discretion require prior to entering into the bareboat charter with the Borrower; and | ||
10.12.7 | the Borrower shall assign the benefit of any such bareboat charter and its interest in the Insurances to the Finance Parties by way of further security for the Borrowers obligations under the Security Documents. |
10.13 | Loans and guarantees by the Borrower | |
Otherwise than in the ordinary course of business as owner of the Vessel, the Borrower will not make any loan or advance or extend credit to any person, firm or corporation or issue or enter into any guarantee or indemnity or otherwise become directly or contingently liable for the obligations of any other person, firm or corporation. | ||
10.14 | Management and employment | |
Except with the prior consent of the Agent, the Borrower will not: |
10.14.1 | permit any person other than the Manager to be the manager of, including providing crewing services to, the Vessel; | ||
10.14.2 | permit any amendment to be made to the terms of the Management Agreement unless the amendment is advised by the Borrowers tax counsel or is deemed necessary by the parties thereto to reflect the prevailing circumstances but provided that the amendment does not imperil the security to be provided pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its obligations under the Transaction Documents; or | ||
10.14.3 | permit the Vessel to be employed other than within the NCL or NCL America brand (as applicable). |
10.15 | Acquisition of shares | |
The Borrower will not acquire any equity, share capital, assets or obligations of any corporation or other entity or permit its shares to be held other than directly or indirectly by the Guarantor. | ||
10.16 | Trading with the United States of America | |
The Borrower shall in respect of the Vessel take all reasonable precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America (as the same may be amended and/or re-enacted from time to time hereafter) or any similar legislation applicable to the Vessel in any other jurisdiction in which the Vessel shall trade (a Relevant Jurisdiction ) where the Vessel trades in the territorial waters of the United States of America or a Relevant Jurisdiction and, for this purpose, the Borrower shall, inter alia, enter into a Carrier Initiative Agreement with the United |
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States Customs Service (if such is possible) and procure that the same (or a similar agreement in a Relevant Jurisdiction) is maintained in full force and effect and its obligations thereunder performed by it in respect of the Vessel throughout any period of United States of America (including coastal waters over which it claims jurisdiction) or Relevant Jurisdiction related trading. |
10.17 | Further assurance | |
The Borrower will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent as the Agent may reasonably consider necessary for giving full effect to any of the Transaction Documents or the Coface Insurance Policy or securing to the Finance Parties the full benefit of the rights, powers and remedies conferred upon the Finance Parties or any of them in any such Transaction Document. | ||
10.18 | Valuation of the Vessel |
10.18.1 | The Borrower will from time to time (but at intervals no more frequently than annually at the Borrowers expense unless an Event of Default has occurred and remains unremedied) within thirty (30) days of receiving any request to that effect from the Agent, procure that the Vessel is valued by an independent reputable shipbroker or shipvaluer experienced in valuing cruise ships appointed by the Borrower and approved by the Agent (which approval shall not be unreasonably withheld or delayed and such valuation to be made with or without taking into account the benefit or otherwise of any fixed employment relating to the Vessel as the Agent may require). | ||
10.18.2 | If the Borrower does not accept the valuation obtained pursuant to Clause 10.18.1 (the First Valuation ) it may (at its own expense) within five (5) Business Days of receipt of the First Valuation obtain a second valuation (the Second Valuation ) from another independent reputable shipbroker or shipvaluer experienced in valuing cruise ships appointed by the Borrower and approved by the Agent which approval shall not be unreasonably withheld or delayed. | ||
10.18.3 | If the Second Valuation exceeds the First Valuation by a margin of no less than ten per cent. (10%) of the First Valuation the Borrower may at its expense forthwith upon receipt of the Second Valuation request the shipbrokers and/or shipvaluers appointed pursuant to Clauses 10.18.1 and 10.18.2 to obtain a third valuation (the Third Valuation ) from a further independent reputable shipbroker or shipvaluer experienced in valuing cruise ships approved by the Agent such approval not to be unreasonably withheld or delayed. Subject to the Third Valuation being made available within five (5) Business Days of the date of the Second Valuation, the valuation of the Vessel will be determined on the basis of the average of the three valuations so obtained. If the Third Valuation is not made available within the aforementioned time limit, the Vessel shall be valued on the basis of the average of the First Valuation and the Second Valuation. | ||
10.18.4 | The Borrower shall procure that forthwith upon the issuance of any valuation obtained pursuant to this Clause 10.18 a copy thereof is sent directly to the Agent for review. |
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10.20.1 | from the Delivery Date until the end of the Security Period to insure the Vessel in its name and keep the Vessel insured on an agreed value basis for an amount in the currency in which the Loan is denominated approved by the Agent but not being less than the greater of: |
(a) | one hundred and twenty five per cent. (125%) of the amount of the Loan; and | ||
(b) | the full market and commercial value of the Vessel determined in accordance with Clause 10.18 from time to time | ||
through internationally recognised independent first class insurance companies, underwriters, war risks and protection and indemnity associations acceptable to the Agent in each instance on terms and conditions approved by the Agent including as to deductibles but at least in respect of: | |||
(i) | fire and marine risks including but without limitation hull and machinery and all other risks customarily and usually covered by first-class and prudent shipowners in the London insurance markets under English marine policies or Agent-approved policies containing the ordinary conditions applicable to similar vessels; | ||
(ii) | war risks and war risks (protection and indemnity) up to the insured amount; | ||
(iii) | excess risks that is to say the proportion of claims for general average and salvage charges and under the running down clause not recoverable in consequence of the value at which the Vessel is assessed for the purpose of such claims exceeding the insured value; | ||
(iv) | protection and indemnity risks with full standard coverage as offered by first-class protection and indemnity associations and up to the highest limit of liability available (for oil pollution risk the highest limit currently available is one billion Dollars (USD1,000,000,000) and this to be increased if reasonably requested by the Agent and the increase is possible in accordance with the standard protection and indemnity cover for vessels of its type and is compatible with prudent insurance practice for first class cruise shipowners or operators in waters where the Vessel trades from time to time from the Delivery Date until the end of the Security Period); | ||
(v) | when and while the Vessel is laid-up, in lieu of hull insurance, normal port risks; and | ||
(vi) | such other risks as the Agent may from time to time reasonably require; |
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and in any event in respect of those risks and at those levels covered by first class and prudent owners and/or financiers in the international market in respect of similar tonnage provided that if any of such insurances are also effected in the name of any other person (other than the Borrower and/or a Finance Party) such person shall if so required by the Agent execute a first priority assignment of its interest in such insurances in favour of the Finance Parties in similar terms mutatis mutandis to the Assignment of Insurances; |
10.20.2 | to agree that the Agent shall take out mortgagee interest insurance on such conditions as the Agent may reasonably require and mortgagee interest insurance for pollution risks as from time to time agreed each for an amount in the currency in which the Loan is denominated of one hundred and ten per cent. (110%) of the amount of the Loan, the Borrower having no interest or entitlement in respect of such policies; the Borrower shall upon demand of the Agent reimburse the Agent for the costs of effecting and/or maintaining any such insurance(s) and the Agent hereby undertakes to use its reasonable endeavours to match the premium level that the Borrower would have paid if the Borrower itself had arranged such cover on such conditions (as demonstrated to the reasonable satisfaction of the Agent); | ||
10.20.3 | if the Vessel shall trade in the United States of America and/or the Exclusive Economic Zone of the United States of America (the EEZ ) as such term is defined in the US Oil Pollution Act 1990 ( OPA ), to comply strictly with the requirements of OPA and any similar legislation which may from time to time be enacted in any jurisdiction in which the Vessel presently trades or may or will trade at any time during the existence of this Agreement and in particular before such trade is commenced and during the entire period during which such trade is carried on: |
(a) | to pay any additional premiums required to maintain protection and indemnity cover for oil pollution up to the limit available to it for the Vessel in the market; | ||
(b) | to make all such quarterly or other voyage declarations as may from time to time be required by the Vessels protection and indemnity association and to comply with all obligations in order to maintain such cover, and promptly to deliver to the Agent copies of such declarations; | ||
(c) | to submit the Vessel to such additional periodic, classification, structural or other surveys which may be required by the Vessels protection and indemnity insurers to maintain cover for such trade and promptly to deliver to the Agent copies of reports made in respect of such surveys; | ||
(d) | to implement any recommendations contained in the reports issued following the surveys referred to in Clause 10.20.4(c) within the time limit specified therein and to provide evidence satisfactory to the Agent that the protection and indemnity insurers are satisfied that this has been done; | ||
(e) | in particular strictly to comply with the requirements of any applicable law, convention, regulation, proclamation or order with regard to financial responsibility for liabilities imposed on the Borrower or the Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and to provide the Agent on demand with such information or evidence as it may reasonably require of such compliance; |
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(f) | to procure that the protection and indemnity insurances do not contain a clause excluding the Vessel from trading in waters of the United States of America and the EEZ or any other provision analogous thereto and to provide the Agent with evidence that this is so; and | ||
(g) | strictly to comply with any operational or structural regulations issued from time to time by any relevant authorities under OPA so that at all times the Vessel falls within the provisions which limit strict liability under OPA for oil pollution; |
10.20.4 | to give notice forthwith of any assignment of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or associations in the form approved by the Agent; | ||
10.20.5 | to execute and deliver all such documents and do all such things as may be necessary to confer upon the Finance Parties legal title to the Insurances in respect of the Vessel and to procure that the interest of the Finance Parties is at all times filed with all slips, cover notes, policies and certificates of entry and to procure (a) that a loss payable clause in the form approved by the Agent shall be filed with all the hull, machinery and equipment and war risks policies in respect of the Vessel and (b) that a loss payable clause in the form approved by the Agent shall be endorsed upon the protection and indemnity certificates of entry in respect of the Vessel; | ||
10.20.6 | to procure that each of the relevant brokers and associations furnishes the Agent with a letter of undertaking in such form as may be required by the Agent and waives any lien for premiums or calls except in relation to premiums or calls solely attributable to the Vessel; | ||
10.20.7 | punctually to pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the Vessel and to produce all relevant receipts when so required by the Agent; | ||
10.20.8 | to renew each of the Insurances on the Vessel at least five (5) days before the expiry thereof and to give immediate notice to the Agent of such renewal and to procure that the relevant brokers or associations shall promptly confirm in writing to the Agent that such renewal is effected it being understood by the Borrower that any failure to renew the Insurances on the Vessel at least five (5) days before the expiry thereof or to give or procure the relevant notices of such renewal shall constitute an Event of Default; | ||
10.20.9 | to arrange for the execution of such guarantees as may from time to time be required by any protection and indemnity and/or war risks association; | ||
10.20.10 | to furnish the Agent from time to time on request with full information about all Insurances maintained on the Vessel and the names of the offices, companies, underwriters, associations or clubs with which such Insurances are placed; | ||
10.20.11 | not to agree to any variation in the terms of any of the Insurances on the Vessel without the prior approval of the Agent nor to do any act or voluntarily suffer or permit any act to be done whereby any Insurances shall or may be rendered invalid, void, voidable, suspended, defeated or unenforceable and not to suffer or permit the Vessel to engage in any voyage nor to carry any cargo not permitted under any of the Insurances without first obtaining the consent of the insurers or reinsurers concerned and complying with such requirements as to |
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payment of extra premiums or otherwise as the insurers or reinsurers may impose; | |||
10.20.12 | not without the prior written consent of the Agent to settle, compromise or abandon any claim in respect of any of the Insurances on the Vessel other than a claim of less than ten million Dollars (USD10,000,000) or the equivalent in any other currency and not being a claim arising out of a Total Loss; | ||
10.20.13 | promptly to furnish the Agent with full information regarding any casualties or other accidents or damage to the Vessel involving an amount in excess of [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]; | ||
10.20.14 | to apply or ensure the appliance of all such sums receivable in respect of the Insurances on the Vessel for the purpose of making good the loss and fully repairing all damage in respect whereof the insurance monies shall have been received; | ||
10.20.15 | that in the event of it making default in insuring and keeping insured the Vessel as hereinbefore provided then the Agent may (but shall not be bound to) insure the Vessel or enter the Vessel in such manner and to such extent as the Agent in its discretion thinks fit and in such case all the cost of effecting and maintaining such insurance together with interest thereon at the Interest Rate shall be paid on demand by the Borrower to the Agent; and | ||
10.20.16 | to agree that the Agent shall be entitled from time to time (but at intervals no more frequently than annually at the Borrowers expense up to an amount of ten thousand euro (EUR10,000) annually, except in the case that the Delivery Date and any renewal or amendment of the Insurances to be assigned to the Finance Parties pursuant to the Assignment of Insurances fall within one (1) year of each other or such Insurances are amended within one (1) year of the Delivery Date or their renewal (as the case may be)) to instruct independent reputable insurance advisers for the purpose of obtaining any advice or information regarding any matter concerning the Insurances which the Agent shall at its sole discretion deem necessary, it being hereby specifically agreed that it shall reimburse the Agent on demand for all reasonable costs and expenses incurred by the Agent in connection with the instruction of such advisers as aforesaid. |
10.21 | Operation and maintenance of the Vessel | |
From the Delivery Date until the end of the Security Period at its own expense the Borrower will: |
10.21.1 | keep the Vessel in a good and efficient state of repair so as to maintain it to the highest classification notation available for the Vessel of its age and type free of all recommendations and qualifications with Det Norske Veritas. On the Delivery Date and annually thereafter, it will furnish to the Agent a statement by such classification society that such classification notation is maintained. It will comply with all recommendations, regulations and requirements (statutory or otherwise) from time to time applicable to the Vessel and shall have on board as and when required thereby valid certificates showing compliance therewith and shall procure that all repairs to or replacements of any damaged, worn or lost parts or equipment are carried out (both as regards workmanship and quality of materials) so as not to diminish the value or class of the Vessel. It will not make any substantial modifications or alterations to the Vessel or any part thereof which would reduce the market and commercial value of the Vessel |
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determined in accordance with Clause 10.18 without the prior consent of the Agent; | |||
10.21.2 | submit the Vessel to continuous survey in respect of its machinery and hull and such other surveys as may be required for classification purposes and, if so required by the Agent, supply to the Agent copies in English of the survey reports; | ||
10.21.3 | permit surveyors or agents appointed by the Agent to board the Vessel at all reasonable times to inspect its condition or satisfy themselves as to repairs proposed or already carried out and afford all proper facilities for such inspections; | ||
10.21.4 | comply, or procure that the Manager will comply, with the ISM Code (as the same may be amended from time to time) or any replacement of the ISM Code (as the same may be amended from time to time) and in particular, without prejudice to the generality of the foregoing, as and when required to do so by the ISM Code and at all times thereafter: |
(a) | hold, or procure that the Manager holds, a valid Document of Compliance duly issued to the Borrower or the Manager (as the case may be) pursuant to the ISM Code and a valid Safety Management Certificate duly issued to the Vessel pursuant to the ISM Code; | ||
(b) | provide the Agent with copies of any such Document of Compliance and Safety Management Certificate as soon as the same are issued; and | ||
(c) | keep, or procure that there is kept, on board the Vessel a copy of any such Document of Compliance and the original of any such Safety Management Certificate; |
10.21.5 | comply, or procure that the Manager will comply, with the ISPS Code (as the same may be amended from time to time) or any replacement of the ISPS Code (as the same may be amended from time to time) and in particular, without prejudice to the generality of the foregoing, as and when required to do so by the ISPS Code and at all times thereafter: |
(a) | keep, or procure that there is kept, on board the Vessel the original of the International Ship Security Certificate; and | ||
(b) | keep, or procure that there is kept, on board the Vessel a copy of the ship security plan prepared pursuant to the ISPS Code; |
10.21.6 | comply with Annex VI (as the same may be amended from time to time) or any replacement of Annex VI (as the same may be amended from time to time) and in particular, without limitation, to: |
(a) | procure that the Vessels master and crew are familiar with, and that the Vessel complies with, Annex VI; and | ||
(b) | maintain for the Vessel throughout the Security Period a valid and current IAPPC and provide a copy to the Agent; and | ||
(c) | notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the IAPPC; |
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10.21.7 | not employ the Vessel or permit its employment in any trade or business which is forbidden by any applicable law or is otherwise illicit or in carrying illicit or prohibited goods or in any manner whatsoever which may render it liable to condemnation in a prize court or to destruction, seizure or confiscation or that may expose the Vessel to penalties. In the event of hostilities in any part of the world (whether war be declared or not) it will not employ the Vessel or permit its employment in carrying any contraband goods; | ||
10.21.8 | promptly provide the Agent with (a) all information which the Agent may reasonably require regarding the Vessel, its employment, earnings, position and engagements (b) particulars of all towages and salvages and (c) copies of all charters and other contracts for its employment and otherwise concerning it; | ||
10.21.9 | give notice to the Agent promptly and in reasonable detail upon the Borrower or any other Obligor becoming aware of: |
(a) | accidents to the Vessel involving repairs the cost of which will or is likely to exceed [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]; | ||
(b) | the Vessel becoming or being likely to become a Total Loss; | ||
(c) | any recommendation or requirement made by any insurer or classification society or by any competent authority which is not complied with, or cannot be complied with, within any time limit relating thereto and that might reasonably affect the maintenance of either the Insurances or the classification of the Vessel; | ||
(d) | any writ or claim served against or any arrest of the Vessel or the exercise of any lien or purported lien on the Vessel, her Earnings or Insurances; | ||
(e) | the Vessel ceasing to be registered under the flag of the Maritime Registry or anything which is done or not done whereby such registration may be imperilled; | ||
(f) | it becoming impossible or unlawful for it to fulfil any of its obligations under the Security Documents; and | ||
(g) | anything done or permitted or not done in respect of the Vessel by any person which is likely to imperil the security created by the Security Documents; |
10.21.10 | promptly pay and discharge all debts, damages and liabilities, taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings in respect of the Vessel and keep proper books of account in respect thereof provided always that the Borrower shall not be obliged to compromise any debts, damages and liabilities as aforesaid which are being contested in good faith subject always that full details of any such contested debt, damage or liability which, either individually or in aggregate exceeds [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] shall forthwith be provided to the Agent. As and when the Agent may so require the Borrower will make such books available for inspection on behalf of the Agent and provide evidence satisfactory to the Agent that the wages and allotments and the insurance and pension contributions of the master and crew are being regularly paid, that all deductions of crews wages in respect of any tax liability are being properly accounted for and that the master has no claim for disbursements other than those incurred in the |
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ordinary course of trading on the voyage then in progress or completed prior to such inspection; |
10.21.11 | maintain the type of the Vessel as at the Delivery Date and not put the Vessel into the possession of any person without the prior consent of the Agent for the purpose of work being done on it in an amount exceeding or likely to exceed [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] unless such person shall first have given to the Agent a written undertaking addressed to the Agent in terms satisfactory to the Agent agreeing not to exercise a lien on the Vessel or her Earnings for the cost of such work or for any other reason; | ||
10.21.12 | promptly pay and discharge all liabilities which have given rise, or may give rise, to liens or claims enforceable against the Vessel under the laws of all countries to whose jurisdiction the Vessel may from time to time be subject and in particular the Borrower hereby agrees to indemnify and hold the Finance Parties, their successors, assigns, directors, officers, shareholders, employees and agents harmless from and against any and all claims, losses, liabilities, damages, expenses (including attorneys, fees and expenses and consultant fees) and injuries of any kind whatsoever asserted against the Finance Parties, with respect to or as a result of the presence, escape, seepage, spillage, release, leaking, discharge or migration from the Vessel or other properties owned or operated by the Borrower of any hazardous substance, including without limitation, any claims asserted or arising under any applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all governmental agencies, regardless of whether or not caused by or within the control of the Borrower subject to the following: |
(a) | it is the parties understanding that the Finance Parties do not now, have never and do not intend in the future to exercise any operational control or maintenance over the Vessel or any other properties and operations owned or operated by the Borrower, nor in the past, presently, or intend in the future to, maintain an ownership interest in the Vessel or any other properties owned or operated by the Borrower except as may arise upon enforcement of the Lenders rights under the Mortgage; | ||
(b) | the indemnity and hold harmless contained in this Clause 10.21.12 shall not extend to the Finance Parties in their capacity as equity investors in the Borrower or as an owner of any property or interest as to which the Borrower is also owner but only to their capacity as lenders, holders of security interests or beneficiaries of security interests; and | ||
(c) | unless and until an Event of Default shall have occurred and without prejudice to the right of each Lender to be indemnified pursuant to this Clause 10.21.12: |
(i) | each Lender will, if it is reasonably practicable to do so, notify the Borrower upon receiving a claim in respect of which the relevant Lender is or may become entitled to an indemnity under this Clause 10.21.12; | ||
(ii) | subject to the prior written approval of the relevant Lender which the Lender shall have the right to withhold, the Borrower will be entitled to take, in the name of the relevant Lender, such action as the Borrower may see fit to avoid, dispute, resist, appeal, compromise or defend any such claims, losses, liabilities, damages, expenses and injuries as are referred to |
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above in this Clause 10.21.12 or to recover the same from any third party, subject to the Borrower first ensuring that the relevant Lender is secured to its reasonable satisfaction against all expenses thereby incurred or to be incurred; and |
(iii) | the relevant Lender will, to the extent that it is reasonably practicable to do so, seek the approval of the Borrower (such approval not to be unreasonably withheld or delayed) before making any admission of liability, agreement or compromise with a third party, or any payment to a third party, in respect of such claims, losses, liabilities, damages, expenses and injuries as are referred to above in this Clause 10.21.12 and, to the extent that the Borrower is entitled to take action in accordance with sub-clause (ii) above and subject to the Borrower first ensuring that the relevant Lender is secured to its reasonable satisfaction against all expenses thereby incurred or to be incurred, the relevant Lender will provide such information, assistance and other co-operation as the Borrower may reasonably request in connection with such action, |
provided always that the Borrower shall not be obliged to compromise any liabilities as aforesaid which are being contested in good faith subject always that full details of any such contested liabilities which, either individually or in aggregate, exceed [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] shall be forthwith provided to the Agent. If the Vessel is arrested or detained for any reason it will procure its immediate release by providing bail or taking such other steps as the circumstances may require; |
10.21.13 | give to the Agent at such times as it may from time to time reasonably require a certificate, duly signed on its behalf, as to the total amount of any debts, damages and liabilities relating to the Vessel and details of such of those debts, damages and liabilities as are over a certain amount to be specified by the Agent at the relevant time and, if so required by the Agent, forthwith discharge such of those debts, damages and liabilities as the Agent shall require other than those being contested in good faith; and | ||
10.21.14 | maintain the registration of the Vessel under and fly the flag of the Maritime Registry and not do or permit anything to be done whereby such registration may be forfeited or imperilled. |
10.22 | Dividends | |
Subject to the provisions of clause 11.3 of the Guarantee, the Borrower will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received promptly by the Guarantor directly or indirectly from the Borrowers shareholder (if such shareholder is not the Guarantor) by way of dividend. | ||
10.23 | Irrevocable payment instructions | |
The Borrower shall not modify, revoke or withhold the payment instructions set out in Clause 3.2 without the agreement of the Builder (in the case of Clause 3.2.1 only), the Agent and the Lenders. |
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10.24 | Know your customer checks | |
If: |
10.24.1 | the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; | ||
10.24.2 | any change in the status of a Borrower after the date of this Agreement; or | ||
10.24.3 | a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer, |
obliges the Agent or any Lender (or, in the case of Clause 10.24.3, any prospective New Lender) to comply with know your customer or similar identification procedures in circumstances where the necessary information is not already available to it, the Borrowers shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in Clause 10.24.3, on behalf of any prospective New Lender) in order for the Agent, such Lender or, in the case of the event described in Clause 20.6.1(c), any prospective New Lender 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 the Finance Documents. |
10.25 | Building Contract | |
The Borrower shall not substantially modify the Building Contract, directly or indirectly, if, by reason of regulations which apply to a Lender, such modification would make such Lenders Commitment impossible to fulfil or would change the substance or form of its Commitment. The Borrower may, therefore, submit to the Lenders any proposals for modification which, in its opinion, might have such a consequence, and the Lenders will indicate in a timely manner whether the modification proposed will allow the Loan to be maintained. | ||
On or about the last day of each successive period of three (3) months commencing on the date of this Agreement and on the date of the Drawdown Notice, the Borrower undertakes to provide the Agent with a copy of any Change Order entered into during that three (3) month or other period. The Borrower also undertakes to notify the Agent of any change in the Intended Delivery Date as soon as practicable after the change has occurred. | ||
11. | PREPAYMENT | |
11.1 | The Borrower may prepay all or part of the Loan (but if in part being an amount that reduces the Loan by a minimum amount of one (1) repayment instalment of principal of the Loan together with interest thereon) without penalty provided the prepayment is made on the relevant interest payment date and one (1) months prior written notice indicating the intended date of prepayment is given to the Agent, but compensation shall be payable to the Lenders in the sum of: |
11.1.1 | the difference (if positive), calculated by the Lenders, between the actual cost for the Lenders of the funding for the Loan and the rate of interest for the monies to be invested by the Lenders, applied to the amounts so prepaid for the period from said prepayment until the next interest prepayment date (if |
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prepayment does not occur on an interest payment date). Details of any such calculation shall be supplied to the Borrower by the Lenders; and |
11.1.2 | the charges (if any) imposed on the Lenders by the French Authorities (funding or breakage costs of the French Authority in charge of monitoring the CIRR). |
11.2 | Any prepayment of the whole of the Loan shall be made together with all other sums due under this Agreement. | |
11.3 | Amounts prepaid shall be applied in accordance with Clause 17. | |
11.4 | Amounts prepaid may not be reborrowed. | |
12. | INTEREST ON LATE PAYMENTS | |
12.1 | Without prejudice to the provisions of Clause 13 and without this Clause in any way constituting a waiver of terms of payment, all sums due by the Borrower under this Agreement will automatically bear interest on a day to day basis from the date when they are payable until the date of actual payment at a rate per annum equal to the higher of: |
12.1.1 | Overnight LIBOR plus [**] [Confidential Treatment] per cent. [**] [Confidential Treatment]; and | ||
12.1.2 | the CIRR plus [**] [Confidential Treatment] per cent. [**] [Confidential Treatment]. |
Such interest will itself bear interest at the above rate if it is due for an entire year. |
13. | ACCELERATION EVENTS OF DEFAULT | |
13.1 | If any one of the Events of Default set out in Clause 13.2 occurs and remains unremedied: |
13.1.1 | if the Loan has not been drawn down, no drawing under the Loan may be requested from the Lenders; or | ||
13.1.2 | if the Loan has already been drawn down, the Lenders may require immediate payment of the outstanding principal amount of the Loan (including but without limitation the amount representing the financed Coface Premium) together with all other sums due under this Agreement: |
13.2 | The following are the Events of Default referred to in Clause 13.1: |
13.2.1 | Non-payment | ||
The Borrower or any other Obligor does not pay on the due date any amount of principal or interest of the Loan (provided however that if any such amount is not paid when due solely by reason of some error or omission on the part of the bank or banks through whom the relevant funds are being transmitted no Event of Default shall occur for the purposes of this Clause 13.2.1 until the expiry of three (3) Business Days following the date on which such payment is due), or within three (3) Business Days of the due date any other amount payable by it under any Security Document to which it may at any time be a party including but without limitation any amount payable by the Guarantor under the Guarantee, at the place and in the currency in which it is expressed to be payable. |
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13.2.2 | Breach of other obligations |
(a) | Any Obligor fails to comply with any provision of any Security Document and in particular but without limitation any failure by the Guarantor to comply with the provisions of Clauses 9 (General Undertakings: Positive Covenants), 10 (General Undertakings: Negative Covenants) and/or 11 (Financial Undertakings and Ownership and Control of the Guarantor) of the Guarantee or there is any breach in the sole opinion of the Agent of any of the Transaction Documents. | ||
If the Loan has already been drawn down, an Event of Default shall not have arisen if the failure (if in the opinion of the Agent in its sole discretion it is capable of remedy) has been remedied within a period of thirty (30) days from the date of its occurrence, if the failure was known to that Obligor, or from the date the relevant Obligor is notified by the Agent of the failure, if the failure was not known to that Obligor, unless in any such case as aforesaid the Agent in its sole discretion considers that the failure is or could reasonably be expected to become materially prejudicial to the interests, rights or position of the Lenders; or | |||
(b) | If there is a repudiation or termination of any Transaction Document or if any of the parties thereto becomes entitled to terminate or repudiate any of them and evidences an intention so to do. |
13.2.3 | Misrepresentation | ||
Any representation, warranty or statement made or repeated in, or in connection with, any Transaction Document or the Coface Insurance Policy or in any accounts, certificate, statement or opinion delivered by or on behalf of any Obligor thereunder or in connection therewith is materially incorrect when made or would, if repeated at any time hereafter by reference to the facts subsisting at such time, no longer be materially correct. | |||
13.2.4 | Cross default |
(a) | Any event of default occurs under any financial contract or financial document relating to any Financial Indebtedness of any member of the Group; | ||
(b) | Any such Financial Indebtedness or any sum payable in respect thereof is not paid when due (after the expiry of any applicable grace period(s)) whether by acceleration or otherwise; | ||
(c) | Any Encumbrance over any assets of any member of the Group becomes enforceable; | ||
(d) | Any other Financial Indebtedness of any member of the Group is not paid when due or is or becomes capable of being declared due prematurely by reason of default or any security for the same becomes enforceable by reason of default; |
provided that: |
(i) | No Event of Default will arise if the relevant Financial Indebtedness is not accelerated or, if it is accelerated but, in aggregate, the Financial |
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Indebtedness is less than twenty five million Dollars (USD25,000,000); and |
(ii) | Financial Indebtedness being contested by the Borrower in good faith will be disregarded for a period of one hundred and fifty (150) days from its occurrence if full details of the dispute are submitted to the Agent forthwith upon its occurrence. If the dispute remains unresolved for a period of more than one hundred and fifty (150) days from its occurrence, this Clause 13.2.4(ii) shall not apply to that Financial Indebtedness. |
13.2.5 | Winding-up | ||
Subject to clause 10.6 of the Guarantee, any order is made or an effective resolution passed or other action taken for the suspension of payments or reorganisation, dissolution, termination of existence, liquidation, winding-up or bankruptcy of any member of the Group. | |||
13.2.6 | Moratorium or arrangement with creditors | ||
A moratorium in respect of all or any debts of any member of the Group or a composition or an arrangement with creditors of any member of the Group or any similar proceeding or arrangement by which the assets of any member of the Group are submitted to the control of its creditors is applied for, ordered or declared or any member of the Group commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of all or a significant part of its Financial Indebtedness. | |||
13.2.7 | Appointment of liquidators etc. | ||
A liquidator, trustee, administrator, receiver, administrative receiver, manager or similar officer is appointed in respect of any member of the Group or in respect of all or any substantial part of the assets of any member of the Group and in any such case such appointment is not withdrawn within thirty (30) days (the Grace Period ) unless the Agent considers in its sole discretion that the interest of the Lenders might reasonably be expected to be adversely affected in which event the Grace Period shall not apply. | |||
13.2.8 | Insolvency | ||
Any member of the Group becomes or is declared insolvent or is unable, or admits in writing its inability, to pay its debts as they fall due or becomes insolvent within the terms of any applicable law. | |||
13.2.9 | Legal process | ||
Any distress, execution, attachment or other process affects the whole or any substantial part of the assets of any member of the Group and remains undischarged for a period of twenty one (21) days or any uninsured judgment in excess of [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] following final appeal remains unsatisfied for a period of thirty (30) days in the case of a judgment made in the United States of America and otherwise for a period of sixty (60) days provided that no Event of Default shall be deemed to have occurred unless the distress, execution, attachment or other process adversely affects any Obligors ability to meet any of its material obligations under this Agreement or the other Security Documents or cause to occur any of the events specified in |
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Clauses 13.2.5 to 13.2.8 (the determination of which shall be in the Agents sole discretion). |
13.2.10 | Analogous events | ||
Anything analogous to or having a substantially similar effect to any of the events specified in Clauses 13.2.5 to 13.2.9 shall occur under the laws of any applicable jurisdiction. | |||
13.2.11 | Cessation of business | ||
Subject to clause 10.6 of the Guarantee, any member of the Group ceases to carry on all or a substantial part of its business. | |||
13.2.12 | Revocation of consents | ||
Any authorisation, approval, consent, licence, exemption, filing, registration or notarisation or other requirement necessary to enable any Obligor to comply with any of its obligations under any of the Transaction Documents is materially adversely modified, revoked or withheld or does not remain in full force and effect and within ninety (90) days of the date of its occurrence such event is not remedied to the satisfaction of the Agent and the Agent considers in its sole discretion that such failure is or might be expected to become materially prejudicial to the interests, rights or position of the Lenders provided that the Borrower shall not be entitled to the aforesaid ninety (90) day period if the modification, revocation or withholding of the authorisation, approval or consent is due to an act or omission of any Obligor and the Agent is satisfied in its sole discretion that the Lenders interests might reasonably be expected to be materially adversely affected. | |||
13.2.13 | Unlawfulness | ||
At any time it is unlawful or impossible for any Obligor to perform any of its material (to the Finance Parties or any of them) obligations under any Transaction Document to which it is a party or it is unlawful or impossible for the Finance Parties or any Lender to exercise any of their or its rights under any of the Transaction Documents, provided that no Event of Default shall be deemed to have occurred where: |
(a) | the unlawfulness or impossibility preventing any Obligor from performing its obligations (other than its payment obligations under this Agreement, the other Transaction Documents) is cured within a period of twenty one (21) days of the occurrence of the event giving rise to the unlawfulness or impossibility and the relevant Obligor within the aforesaid period, performs its obligation(s) (except where the unlawfulness or impossibility adversely affects any Obligors payment obligations under this Agreement, the other Transaction Documents (the determination of which shall be in the Agents sole discretion) in which case the following provisions of this Clause 13.2.13 shall not apply); and/or | ||
(b) | where a Finance Party was aware of the default and could, in its sole discretion, mitigate the consequences of the unlawfulness or impossibility. The reasonable costs of mitigating the consequences of the unlawfulness or impossibility shall be borne by the Borrower save where such costs are of an internal administrative nature and are not incurred in dealings by the Finance Party with third parties. |
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13.2.14 | Insurances | ||
The Borrower fails to insure the Vessel in the manner specified in Clause 10.20 or fails to renew the Insurances at least five (5) days prior to the date of expiry thereof and produce prompt confirmation of such renewal to the Agent. | |||
13.2.15 | Disposals | ||
If the Borrower or any other member of the Group shall have concealed, removed, or permitted to be concealed or removed, any part of its property, with intent to hinder, delay or defraud its creditors or any of them, or made or suffered a transfer of any of its property which may be fraudulent under any bankruptcy, fraudulent conveyance or similar law; or shall have made any transfer of its property to or for the benefit of a creditor with the intention of preferring such creditor over any other creditor. | |||
13.2.16 | Prejudice to security | ||
Anything is done or suffered or omitted to be done by any Obligor which in the reasonable opinion of the Agent would or might be expected to imperil the security created by any of the Security Documents. | |||
13.2.17 | Material adverse change | ||
Any material adverse change in the business, assets or financial condition of any Obligor occurs which in the reasonable opinion of the Agent would or might reasonably be expected to affect the ability of that Obligor duly to perform any of its material obligations under any Security Document to which it may at any time be a party. For the purposes of this Clause 13.2.17 and without prejudice to the generality of the expression material obligations any payment obligations of any Obligor shall be deemed material. | |||
13.2.18 | Governmental intervention | ||
The authority of any member of the Group in the conduct of its business is wholly or substantially curtailed by any seizure or intervention by or on behalf of any authority and within ninety (90) days of the date of its occurrence any such seizure or intervention is not relinquished or withdrawn and the Agent reasonably considers that the relevant occurrence is or might be expected to become materially prejudicial to the interests, rights or position of the Lenders provided that the Borrower shall not be entitled to the aforesaid ninety (90) day period if the seizure or intervention executed by any authority is due to an act or omission of any member of the Group and the Agent is satisfied, in its sole discretion, that the Lenders interest might reasonably be expected to be materially adversely affected. |
13.3 | If at any time during the period commencing on the day after the date of this Agreement and ending on the date falling sixty (60) days before the Intended Delivery Date (the Limited Period ) any event should occur that would constitute an Event of Default, the Agent shall not be entitled to serve a notice under Clause 13.4 unless during the Limited Period: |
13.3.1 | there is a failure by an Obligor to perform any material obligation under the Transaction Documents on the relevant due date or within any applicable grace period, including but without limitation if the Guarantor fails to provide to the |
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Agent the statement referred to in Clause 3.1.4 in the manner described in that Clause; or |
13.3.2 | the relevant event would imperil the security created by the Guarantee. |
In no event shall the provisions of this Clause 13.3 be interpreted as a waiver of the Agents right to serve a notice under Clause 13.4 in respect of any Event of Default which has occurred and remains unremedied on the date falling sixty (60) days before the Intended Delivery Date. |
13.4 | Notice of any Event of Default and/or of the acceleration of the payment of the principal of the Loan, interest thereon and all other sums due under this Agreement shall be given by the Agent in accordance with Clause 27. | |
13.5 | In no event shall any delay in exercising the Lenders right to require advance repayment be interpreted as a waiver of this right. | |
13.6 | Furthermore, in case of such accelerated repayment following an Event of Default, the Borrower shall be liable to pay to the Agent, in addition to the Coface Premium pursuant to Clause 6, compensation calculated as provided for in Clause 11. | |
13.7 | Following an Event of Default and for so long as the same remains unremedied, the Borrower irrevocably authorises the Agent and the Lenders to apply any credit balance to which the Borrower is entitled upon any account of the Borrower with any branch of any of the Agent and the Lenders in or towards satisfaction of any sum due to the Agent or any Lender hereunder but unpaid, and to combine any accounts of the Borrower for this purpose. If such set-off requires a credit balance in a currency other than the required currency to be transferred to an account maintained in connection herewith the transfer shall be effected by crediting to the account in question the amount of the required currency which the Agent or the Lender (as the case may be) could obtain by exchanging such currency for the required currency at the rate of exchange at which its Facility Office would, at the opening of business on the date on which the combination is effected, have sold the currency of that credit balance for the required currency for immediate delivery. | |
13.8 | In the event that the accelerated amount is received by the Agent before the date of normal maturity of the accelerated interest payments, the Borrower shall, subject to no sums remaining due to the Lenders from the Borrower, be entitled to refund of interest for the actual number of days between the date on which the Lenders received the amount and the normal date for payment of such amount. | |
14. | MANDATORY PREPAYMENT | |
14.1 | Subject to Clause 14.2, the Borrower shall forthwith prepay the outstanding principal amount of the Loan (including but without limitation the amount representing the financed Coface Premium) together with all other sums due under this Agreement if: |
14.1.1 | the Vessel shall become a Total Loss; or | ||
14.1.2 | if the Coface Insurance Policy is modified, suspended, terminated or rescinded unless caused by the wilful misconduct or gross negligence of a Finance Party. |
14.2 | However, if the Vessel shall become a Total Loss (but without prejudice to the Lenders rights to receive the proceeds of the Insurances or Compulsory Acquisition forthwith upon collection as may be provided for in the Mortgage and/or the Assignment of Insurances), the Borrower shall not be required to pay its indebtedness under this |
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Agreement earlier than the date which is one hundred and fifty (150) days after the Total Loss Date. |
14.3 | The provisions of Clause 11 shall apply mutatis mutandis to any prepayment pursuant to this Clause 14. | |
15. | CURRENCY OF PAYMENT | |
The funds for payment of all sums due by the Borrower under this Agreement, shall be paid in Dollars or euro (in the case that the payment is due in euro) to the credit of: |
15.1.1 | the account of BNP Paribas, Paris, Swift code: [**] [Confidential Treatment], account number [**] [Confidential Treatment] with BNP Paribas S.A., The Equitable Building, 787 Seventh Avenue, New York, New York NY 10019, Swift code: [**] [Confidential Treatment] , under the following reference: BFI/LSI/BOCI Crédits Acheteurs Commercial Loan Hull No C 33 dated September 2006 in the case of Dollars; and | ||
15.1.2 | BNP Paribas, Paris, Swift code: [**] [Confidential Treatment] , IBAN: [**] [Confidential Treatment], under the following reference: BFI/LSI/BOCI Crédits Acheteurs - Commercial Loan Hull No C 33 dated September 2006 in the case of euro. |
These sums must be credited before 11.00 a.m. New York time or 11.00 a.m. Paris time (in the case that the payment is in euro) in freely transferable and convertible currency. For each payment to be made, the Borrower shall notify the Agent on the third Business Day prior to the due payment date that it will issue instructions to its bank (which shall be named in such notification) to make the relevant payment. |
16. | SECURITY | |
All the Borrowers payment obligations under this Agreement shall be secured by: |
16.1.1 | the Guarantee to be signed within ten (10) Business Days of the date of this Agreement in favour of the Finance Parties; | ||
16.1.2 | the Mortgage to be executed and registered in favour of the Finance Parties forthwith upon delivery of the Vessel; and | ||
16.1.3 | the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement to be executed in favour of the Finance Parties forthwith upon delivery of the Vessel. |
17. | APPLICATION OF SUMS RECEIVED | |
All sums received under this Agreement by the Agent, on behalf of the Lenders, or by any of the Lenders for any reason whatsoever will, without prejudice to complementary provisions of the Mortgage, be applied: |
17.1.1 | in priority, to payments of any kind due or in arrears in the order of their due payment dates and first, to fees, charges and expenses, second, to interest payable pursuant to Clause 12, third, to interest payable pursuant to Clause 4, fourth, to the principal of the Loan payable pursuant to Clause 4 and, fifth, to any other sums due under this Agreement and, if relevant, pro rata to each of the Lenders; or |
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17.1.2 | if no payments are in arrears or if these payments have been discharged as set out above, then and to sums remaining due under this Agreement and, if relevant, pro rata to each of the Lenders and in each case in inverse order of maturity, the interest being recalculated accordingly. |
18. | CHANGES TO THE LENDERS | |
18.1 | Assignments and transfers by the Lenders | |
Subject to this Clause 18, a Lender (the Existing Lender ) may: |
18.1.1 | assign its rights; or | ||
18.1.2 | transfer by novation its rights and obligations, |
to another bank or financial institution which is authorised by the French Authorities to enter into French export credits benefiting from the CIRR (the New Lender ). | ||
18.2 | Conditions of assignment or transfer |
18.2.1 | The consent of the Borrower is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is to another Lender or an Affiliate of a Lender. | ||
18.2.2 | The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. | ||
18.2.3 | The assignment or transfer must be with respect to a minimum Commitment of [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] or, if less, the Existing Lenders full Commitment. | ||
18.2.4 | An assignment will only be effective on: |
(a) | receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was an Original Lender; and | ||
(b) | performance by the Agent of all necessary know your customer or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender. |
18.2.5 | A transfer will only be effective if the procedure set out in Clause 18.5 is complied with. | ||
18.2.6 | If: |
(a) | a Lender assigns or transfers its rights or obligations under the Security Documents or changes its Facility Office; and | ||
(b) | as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 8, |
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then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under that Clause to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred. |
18.3 | Assignment or transfer fee | |
The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of [**] [Confidential Treatment]. The New Lender shall also pay to the Agent, upon demand, all reasonable costs and expenses, duties and fees, including but without limitation legal costs and out of pocket expenses, incurred by the Agent or the Lenders in connection with any necessary amendment to or supplementing of the Transaction Documents or any of them or the Coface Insurance Policy as a consequence of the assignment or transfer. | ||
18.4 | Limitation of responsibility of Existing Lenders |
18.4.1 | Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: |
(a) | the legality, validity, effectiveness, adequacy or enforceability of the Security Documents or any other documents; | ||
(b) | the financial condition of any Obligor; | ||
(c) | the performance and observance by any Obligor of its obligations under the Security Documents or any other documents; or | ||
(d) | the accuracy of any statements (whether written or oral) made in or in connection with any Security Document or any other document, |
and any representations or warranties implied by law are excluded. | |||
18.4.2 | Each New Lender confirms to the Existing Lender and the other Finance Parties that it: |
(a) | has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Security Document; and | ||
(b) | will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Security Documents or any Commitment is in force. |
18.4.3 | Nothing in any Security Document obliges an Existing Lender to: |
(a) | accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 18; or | ||
(b) | support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Security Documents or otherwise. |
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18.5 | Procedure for transfer |
18.5.1 | Subject to the conditions set out in Clause 18.2 a transfer is effected in accordance with Clause 18.5.3 when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to Clause 18.5.2, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate. | ||
18.5.2 | The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender. | ||
18.5.3 | On the Transfer Date: |
(a) | to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Security Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Security Documents and their respective rights against one another under the Security Documents shall be cancelled (being the Discharged Rights and Obligations ); | ||
(b) | each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender; | ||
(c) | the Agent, the Mandated Lead Arrangers, the New Lender and the other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Mandated Lead Arrangers and the Existing Lender shall each be released from further obligations to each other under the Security Documents; and | ||
(d) | the New Lender shall become a Party as a Lender . |
18.6 | Copy of Transfer Certificate to Borrower | |
The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate, send to the Borrower a copy of that Transfer Certificate. | ||
18.7 | Permitted disclosure | |
Any Finance Party may disclose to any of its Affiliates and to the following other persons: |
18.7.1 | any person to (or through) whom that Lender assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this Agreement; |
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18.7.2 | any person with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Agreement or any Obligor; | ||
18.7.3 | any person to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation; | ||
18.7.4 | any other Finance Party, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; | ||
18.7.5 | Coface, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; | ||
18.7.6 | the Guarantor or any other member of the Group, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; or | ||
18.7.7 | auditors, insurance and reinsurance brokers, insurers and reinsurers and professional advisers, including legal advisers, which need to know such information, |
any information about any Obligor, this Agreement and the other Security Documents as that Finance Party shall consider appropriate. Each of the Finance Parties may also disclose to the Builder, or any employee, officer, director or representative of the Builder which needs to know such information or receive such document in the course of such persons employ or duties, such information about any Obligor, this Agreement and the other Security Documents as that Finance Party reasonably considers normal practice for a French export credit. | ||
Each of the Finance Parties acknowledges that all information received now or in the future from or on behalf of the Obligors under or pursuant to or in connection with the Transaction Documents or the Coface Insurance Policy (other than any information which is in the public domain other than as a result of a breach of this Clause) is confidential information and undertakes to advise this fact to any recipient of any such information under this Clause. | ||
19. | CHANGES TO THE OBLIGORS | |
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Security Documents without the unanimous consent of the Lenders. | ||
20. | ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS | |
20.1 | Appointment of the Agent |
20.1.1 | Each other Finance Party appoints the Agent to act as its agent under and in connection with this Agreement and the other Security Documents and the Coface Insurance Policy. | ||
20.1.2 | Each other Finance Party authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Security Documents together with any other incidental rights, powers, authorities and discretions. |
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20.2 | Duties of the Agent |
20.2.1 | The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party. | ||
20.2.2 | Except where a Security Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. | ||
20.2.3 | If the Agent receives notice from a Party referring to this Agreement, describing an Event of Default and stating that the circumstance described is an Event of Default, it shall promptly notify the other Finance Parties. | ||
20.2.4 | If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or a Mandated Lead Arranger) under this Agreement it shall promptly notify the other Finance Parties. | ||
20.2.5 | The Agents duties under the Security Documents are solely administrative in nature. |
20.3 | Role of the Mandated Lead Arrangers | |
None of the Mandated Lead Arrangers has any obligations of any kind to any other Party under or in connection with any Transaction Document or the Coface Insurance Policy. | ||
20.4 | No fiduciary duties |
20.4.1 | Nothing in this Agreement constitutes the Agent or any of the Mandated Lead Arrangers as a trustee or fiduciary of any other person. | ||
20.4.2 | Neither the Agent nor any of the Mandated Lead Arrangers shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account. |
20.5 | Business with the Guarantor | |
The Agent and each of the Mandated Lead Arrangers may accept deposits from, lend money to and generally engage in any kind of banking or other business with any Affiliate or Subsidiary of the Guarantor. | ||
20.6 | Rights and discretions of the Agent |
20.6.1 | The Agent may rely on: |
(a) | any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and | ||
(b) | any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify. |
20.6.2 | The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: |
(a) | no Event of Default has occurred (unless it has actual knowledge of an Event of Default arising under Clause 13.2); and |
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(b) | any right, power, authority or discretion vested in any Party or the Lenders has not been exercised. |
20.6.3 | The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts. | ||
20.6.4 | The Agent may act in relation to the Security Documents through its personnel and agents. | ||
20.6.5 | The Agent may disclose to any other Party any information it reasonably believes it has received as the Agent under this Agreement. | ||
20.6.6 | Notwithstanding any other provision of any Security Document to the contrary, neither the Agent nor any of the Mandated Lead Arrangers is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. |
20.7 | Lenders instructions |
20.7.1 | Unless a contrary indication appears in a Security Document, the Agent shall: |
(a) | exercise any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Lenders (or, if so instructed by the Lenders, refrain from exercising any right, power, authority or discretion vested in it as the Agent); and | ||
(b) | not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Lenders. |
20.7.2 | Unless a contrary indication appears in a Security Document, any instructions given by the Lenders will be binding on all the Finance Parties. | ||
20.7.3 | The Agent may refrain from acting in accordance with the instructions of the Lenders until it has received such security as it may require for any cost, loss or liability (together with any associated value added tax) which it may incur in complying with the instructions. | ||
20.7.4 | In the absence of instructions from the Lenders the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders. | ||
20.7.5 | The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lenders consent) in any legal or arbitration proceedings relating to any Security Document. |
20.8 | Responsibility for documentation | |
The Agent is not responsible for: |
20.8.1 | the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, a Mandated Lead Arranger, an Obligor or any other person given in or in connection with any Transaction Document or the Coface Insurance Policy; or | ||
20.8.2 | is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Coface Insurance Policy or any other agreement, arrangement or document entered into, made or executed in |
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anticipation of or in connection with any Transaction Document or the Coface Insurance Policy. |
20.9 | Exclusion of liability |
20.9.1 | Without limiting Clause 20.9.2, the Agent will not be liable for any action taken by it under or in connection with any Security Document, unless directly caused by its gross negligence or wilful misconduct. | ||
20.9.2 | No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Security Document and any officer, employee or agent of the Agent may rely on this Clause. | ||
20.9.3 | The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Security Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose. | ||
20.9.4 | Nothing in this Agreement shall oblige the Agent or a Mandated Lead Arranger to carry out any know your customer or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Agent and the Mandated Lead Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or a Mandated Lead Arranger. |
20.10 | Lenders indemnity to the Agent | |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three (3) Business Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agents gross negligence or wilful misconduct) in acting as Agent under the Security Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Security Document). |
20.11 | Resignation of the Agent |
20.11.1 | The Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrower. | ||
20.11.2 | Alternatively the Agent may resign by giving notice to the other Finance Parties and the Borrower, in which case the Lenders (after consultation with the Borrower) may appoint a successor Agent. | ||
20.11.3 | If the Lenders have not appointed a successor Agent in accordance with Clause 20.11.2 within thirty (30) days after notice of resignation was given, the Agent (after consultation with the Borrower) may appoint a successor Agent. | ||
20.11.4 | The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Security Documents. |
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20.11.5 | The Agents resignation notice shall only take effect upon the appointment of a successor. | ||
20.11.6 | Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Security Documents but shall remain entitled to the benefit of this Clause 20. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party. | ||
20.11.7 | After consultation with Coface, the Lenders may, by notice to the Agent, require it to resign in accordance with Clause 20.11.2. In this event, the Agent shall resign in accordance with Clause 20.11.2. |
20.12 | Confidentiality |
20.12.1 | In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments. | ||
20.12.2 | If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it. |
20.13 | Relationship with the Lenders | |
The Agent may treat each Lender as a Lender, entitled to payments under this Agreement and acting through its Facility Office unless it has received not less than five (5) Business Days prior notice from that Lender to the contrary in accordance with the terms of this Agreement. | ||
20.14 | Credit appraisal by the Lenders | |
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Security Document, each Lender confirms to the Agent and each of the Mandated Lead Arrangers that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Security Document including but not limited to: |
20.14.1 | the financial condition, status and nature of the Guarantor and each Subsidiary of the Guarantor; | ||
20.14.2 | the legality, validity, effectiveness, adequacy or enforceability of any Security Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Security Document; | ||
20.14.3 | whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Security Document, the transactions contemplated by the Security Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Security Document; and | ||
20.14.4 | the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Security Document, the transactions contemplated by the Security Documents |
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or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Security Document. |
21.1.1 | interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; | ||
21.1.2 | oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or | ||
21.1.3 | oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of tax. |
22. | SHARING AMONG THE FINANCE PARTIES | |
22.1 | Payments to Finance Parties | |
If a Finance Party (a Recovering Finance Party ) receives or recovers any amount from an Obligor other than in accordance with Clause 23 and applies that amount to a payment due under the Security Documents then: |
22.1.1 | the Recovering Finance Party shall, within three (3) Business Days, notify details of the receipt or recovery to the Agent; | ||
22.1.2 | the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 17 and Clause 23), without taking account of any tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and | ||
22.1.3 | the Recovering Finance Party shall, within three (3) Business Days of demand by the Agent, pay to the Agent an amount (the Sharing Payment ) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 17 and Clause 23. |
22.2 | Redistribution of payments | |
The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) in accordance with Clause 17 and Clause 23. |
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22.3 | Recovering Finance Partys rights |
22.3.1 | On a distribution by the Agent under Clause 22.2, the Recovering Finance Party will, if possible under the relevant applicable laws, be subrogated to the rights of the Finance Parties which have shared in the redistribution. | ||
22.3.2 | If and to the extent that the Recovering Finance Party is not able to rely on its rights under Clause 22.3.1, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable. |
22.4 | Reversal of redistribution | |
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then: |
22.4.1 | each Lender which has received a share of the relevant Sharing Payment pursuant to Clause 22.4 shall, upon request of the Agent, pay to the Agent for account of that Recovering Finance Party 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 Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and | ||
22.4.2 | that Recovering Finance Partys rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed. |
22.5 | Exceptions |
22.5.1 | This Clause 22 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor. | ||
22.5.2 | A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if: |
(a) | it notified that other Finance Party of the legal or arbitration proceedings; and | ||
(b) | that other Finance Party 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. |
23. | PAYMENT MECHANICS | |
23.1 | Payments to the Agent |
23.1.1 | On each date on which an Obligor or a Lender is required to make a payment under a Security Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Security Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment. |
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23.1.2 | Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London) with such bank as the Agent specifies. |
23.2 | Distributions by the Agent | |
Each payment received by the Agent under the Security Documents for another Party shall, subject to Clause 23.3, Clause 23.4 and Clause 20.15 be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five (5) Business Days notice with a bank in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London). | ||
23.3 | Distributions to an Obligor | |
The Agent may (with the consent of the Obligor or in accordance with Clause 13.7 apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Security Documents or in or towards purchase of any amount of any currency to be so applied. | ||
23.4 | Clawback |
23.4.1 | Where a sum is to be paid to the Agent under the Security Documents for another Party, the 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. | ||
23.4.2 | If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds. |
23.5 | No set-off by Obligors | |
All payments to be made by an Obligor under the Security Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. | ||
23.6 | Business Days |
23.6.1 | Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). | ||
23.6.2 | During any extension of the due date for payment of any principal or unpaid sum under this Agreement interest is payable on the principal or unpaid sum at the rate payable on the original due date. |
23.7 | Currency of account |
23.7.1 | Subject to Clauses 23.7.2 and 23.7.3 Dollars is the currency of account and payment for any sum from an Obligor under any Security Document. |
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23.7.2 | Each payment in respect of costs, expenses or taxes shall be made in the currency in which the costs, expenses or taxes are incurred. | ||
23.7.3 | Any amount expressed to be payable in a currency other than Dollars shall be paid in that other currency. |
23.8 | Change of currency |
23.8.1 | Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then: |
(a) | any reference in the Security Documents to, and any obligations arising under the Security Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Lenders and the Borrower); and | ||
(b) | any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably). |
23.8.2 | If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Lenders and the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the relevant interbank market and otherwise to reflect the change in currency. |
24. | GOVERNING LAW | |
This Agreement is governed by English law. | ||
25. | ENFORCEMENT | |
25.1 | Jurisdiction of English courts | |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each Party agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. | ||
This Clause 25.1 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any Finance Party may take concurrent proceedings in any number of jurisdictions. | ||
25.2 | Service of process | |
Without prejudice to any other mode of service allowed under any relevant law, the Borrower: |
25.2.1 | irrevocably appoints Clifford Chance Secretaries Limited as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and |
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25.2.2 | agrees that failure by a process agent to notify the Borrower of the process will not invalidate the proceedings concerned. |
26. | APPENDICES | |
The appendices form an integral part of this Agreement. | ||
27. | NOTICES | |
Any notices, demands and service of process relating to this Agreement or its performance, shall be in writing and shall be validly addressed, delivered or served at the respective addresses below: |
For the Borrower:
|
c/o 7665 Corporate Center Drive | |
|
Miami | |
|
Florida 33126 | |
|
United States of America | |
|
Facsimile: +1 305 436 4140 (Ms Bonnie Biumi) and +1 305 | |
|
436 4117 (Legal Department) | |
|
Attention: Ms Bonnie Biumi and the Legal Department | |
|
||
For the Agent:
|
BNP Paribas | |
|
ECEP/Export Finance | |
|
ACI: CHDESA1 | |
|
37 Place du Marché Saint-Honoré | |
|
75031 Paris Cedex 01 | |
|
France | |
|
Facsimile: +33 01 4316 8184 | |
|
Attention: Mrs Dominique Laplasse (Team Head) | |
|
||
For the Lenders:
|
c/o the Agent |
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28.3 | This Agreement shall not be capable of being modified otherwise than by an express modification in writing signed by the Borrower and the Lenders. | |
29. | COMING INTO FORCE | |
This Agreement shall come into force on the date of its signature but the rights and obligations of the Borrower hereunder may be terminated by written notice from the Borrower to the Agent, such notice to be received not later than sixty (60) days prior to the Intended Delivery Date. Following service of such notice (which shall be irrevocable), the Borrower shall have no further right to draw down the Loan and the Borrower shall have no further obligations under this Agreement save in respect of fees, costs and expenses incurred under or in respect of this Agreement on or before the date on which the notice becomes effective or as a result of the service of the notice. | ||
Service by the Borrower of the written notice in accordance with the preceding paragraph shall constitute a condition subsequent to this Agreement. |
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Certified Copy of the commercial invoice, duly executed by the Builder in favour of the Borrower and countersigned by the Borrower. | ||
Certified Copy of the Protocol of Delivery and Acceptance, duly executed by the Builder and the Borrower. | ||
Certified Copy of the declaration of warranty, duly executed by the Builder confirming that the Vessel is delivered to the Borrower free and clear of all encumbrances whatsoever. | ||
Certified Copy of the commercial invoice(s) corresponding to the Change Orders or any other similar document issued by the Builder stating the Change Order Amount, duly executed by the Builder in favour of the Borrower and countersigned by the Borrower. | ||
Acknowledgement of the notice of assignment of the Borrowers rights under the post-delivery warranty given by the Builder under the Building Contract pursuant to the Assignment of Warranty Rights. | ||
Certified Copy of the power of attorney pursuant to which the authorised signatory of the Builder signed the documents referred to in this Appendix I and a specimen of his signature. |
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Name
|
Registered Address | Registered Number with the | ||
|
Registry of Trade and | |||
|
Companies | |||
|
||||
BNP PARIBAS
|
16 boulevard des Italiens, | 662 042 449 (RCS Paris) | ||
|
75009 Paris,France | |||
|
||||
CALYON
|
9 quai du Président | 304 187 701 (RCS Nanterre) | ||
|
Paul Doumer, 92920 Paris La | |||
|
Défense Cedex, France | |||
|
||||
HSBC FRANCE
|
103 avenue des Champs | 775 670 284 (RCS Paris) | ||
|
Elysées, 75419 Paris, Cedex | |||
|
08, France | |||
|
||||
SOCIETE GENERALE
|
29 boulevard Haussmann, | 552 120 222 (RCS Paris) | ||
|
75009 Paris, France | |||
|
||||
each a French société anonyme
|
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1. | We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate. | |
2. | We refer to Clause 18.5: |
(c) | The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lenders Commitment, rights and obligations referred to in the Schedule in accordance with Clause 18.5. | ||
(d) | The proposed Transfer Date is [ ]. | ||
(e) | The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 27 are set out in the Schedule. |
3. | The New Lender expressly acknowledges the limitations on the Existing Lenders obligations set out in Clause 18.4.3. | |
4. | This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate. | |
5. | This Transfer Certificate is governed by English law. |
|
[Existing Lender] | [New Lender] | ||||
|
||||||
|
By: | By: |
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This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [ ]. | ||
[Agent] | ||
By: |
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Page | ||||||
1
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Definitions and Construction | 1 | ||||
2
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Guarantee and Indemnity | 2 | ||||
3
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Survival of Guarantors Liability | 3 | ||||
4
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Continuing Guarantee | 4 | ||||
5
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Exclusion of the Guarantors Rights | 5 | ||||
6
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Payments | 6 | ||||
7
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Enforcement | 7 | ||||
8
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Representations and Warranties | 7 | ||||
9
|
General Undertakings: Positive Covenants | 10 | ||||
10
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General Undertakings: Negative Covenants | 11 | ||||
11
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Financial Undertakings and Ownership and Control of the Guarantor | 13 | ||||
12
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Discharge | 18 | ||||
13
|
Assignment and Transfer | 18 | ||||
14
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Miscellaneous Provisions | 19 | ||||
15
|
Waiver of Immunity | 20 | ||||
16
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Notices | 20 | ||||
17
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Governing Law | 21 | ||||
18
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Jurisdiction | 21 | ||||
Schedule 1
|
Quarterly Statement of Financial Covenants | 24 | ||||
Schedule 2
|
Particulars of Agent and Lenders | 27 |
(1) | NCL CORPORATION LTD. being a company validly existing under the laws of Bermuda with registration number EC34678 and with its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the Guarantor); |
(2) | BNP PARIBAS, CALYON, HSBC FRANCE AND SOCIETE GENERALE, whose details are more particularly set out in Schedule 2 as lenders (the Lenders); and | |
(3) | BNP PARIBAS, whose details are more particularly set out in Schedule 2 as agent (the Agent and collectively with the Lenders the Beneficiaries). |
(A) | By a loan agreement dated 22 September 2006 (the Loan Agreement) made between (among others) (1) F3 One, Ltd. as borrower (the Borrower) (2) the Lenders and (3) the Agent, the Lenders have agreed, on the terms and conditions therein set out, to make available to the Borrower their participations in a loan facility of up to six hundred and sixty two million nine hundred and five thousand three hundred and twenty euro (EUR662,905,320) (the Loan) in order to assist the Borrower in financing part of the purchase price of the Vessel. | |
(B) | It is a condition precedent to the Beneficiaries performing their obligations under the Loan Agreement that the Guarantor enters into this Deed. |
1 | Definitions and Construction |
1.1 | In this Deed the following terms and expressions shall have the meanings set out below; in addition, terms and expressions not defined herein but whose meanings are defined in the Loan Agreement shall have the meanings set out therein. | ||
Accounts means the audited consolidated profit and loss account and balance sheet (including all additional information and notes thereto) of the Guarantor and its consolidated Subsidiaries together with the relative directors and auditors reports; | |||
Event of Default means any of the events specified in clause 13.2 of the Loan Agreement or specified as such in Clause 11; | |||
Obligors means the Borrower, the Guarantor and the Manager; | |||
Office means in respect of the Agent and each Lender its office at the address set out beneath its name in Schedule 2 or such other office as it shall from time to time select and notify through the Agent to the Borrower; |
Outstanding Indebtedness means all sums of any kind payable actually or contingently to the Finance Parties under or pursuant to the Loan Agreement or any Transaction Document (whether by way of repayment of principal, payment of interest or default interest, payment of any indemnity or counter-indemnity, reimbursement for fees, costs or expenses or otherwise howsoever); and | |||
Process Agent means Clifford Chance Secretaries Limited or any other person in England nominated by the Assignor and approved by the Agent to accept service of legal proceedings on its behalf under any of the Transaction Documents. | |||
1.2 | In this Deed unless the context otherwise requires: |
1.2.1 | clause headings are inserted for convenience of reference only and shall be ignored in the construction of this Deed; | ||
1.2.2 | references to Clauses and to Schedules are to be construed as references to clauses of and schedules to this Deed unless otherwise stated and references to this Deed are to be construed as references to this Deed including its Schedules; | ||
1.2.3 | references to (or to any specified provision of) this Deed or any other document shall be construed as references to this Deed, that provision or that document as from time to time amended, supplemented or novated; | ||
1.2.4 | references to any Act or any statutory instrument shall be construed as references to that Act or that statutory instrument as from time to time re-enacted, amended or supplemented; | ||
1.2.5 | references to any party to this Deed or any other document shall include reference to such partys successors and permitted assigns and transferees; | ||
1.2.6 | words importing the plural shall include the singular and vice versa; | ||
1.2.7 | references to a person shall be construed as references to an individual, firm, company, corporation, unincorporated body of persons or any state or any agency thereof; and | ||
1.2.8 | where any matter requires the approval or consent of the Lenders or the Agent such approval or consent shall not be deemed to have been given unless given in writing; where any matter is required to be acceptable to the Lenders or the Agent, the Lenders or the Agent (as the case may be) shall not be deemed to have accepted such matter unless its acceptance is communicated in writing; each of the Lenders and the Agent may give or withhold its consent, approval or acceptance at its unfettered discretion. |
2 | Guarantee and Indemnity |
2.1 | In consideration of the Lenders agreeing at the request of the Guarantor to make the Loan available to the Borrower in accordance with the terms of the Loan Agreement, the payment by the Beneficiaries to the Guarantor of ten Dollars (USD 10) and other good and valuable consideration (the receipt and adequacy of which the Guarantor hereby acknowledges) the Guarantor: |
2
2.1.1 | as primary obligor as and for its own debt and not merely as surety hereby undertakes to the Lenders to be responsible for and hereby guarantees to the Lenders: |
(a) | the due and punctual payment by the Borrower to the Lenders or the Agent (for itself and on behalf of the Lenders) (as the case may be) (as and when due by acceleration, demand or otherwise howsoever) of the Outstanding Indebtedness and every part thereof; and | ||
(b) | the due and punctual performance of all the obligations to be performed by each of the Obligors under or pursuant to the Loan Agreement and the other Security Documents; and |
2.1.2 | unconditionally undertakes immediately on demand by the Agent from time to time to pay and/or perform its obligations under Clause 2.1.1. |
2.2 | For the same consideration as referred to in Clause 2.1 the Guarantor (as a separate and independent obligation) unconditionally undertakes immediately on demand by the Agent from time to time to indemnify the Beneficiaries and hold each of them harmless in respect of: |
2.2.1 | any loss incurred by the Beneficiaries as a result of the Loan Agreement and each other Security Document to which any of the Obligors is a party or any provision thereof becoming invalid, void, voidable or unenforceable for any reason whatsoever after execution hereof; and | ||
2.2.2 | any loss or damage of any kind arising directly or indirectly from any failure on the part of any of the Obligors to perform any obligation to be performed by any of the Obligors under and pursuant to the Loan Agreement and each other Security Document to which any of the Obligors is a party. |
3 | Survival of Guarantors Liability |
3.1 | The Guarantors liability to the Beneficiaries under this Deed shall not be discharged, impaired or otherwise affected by reason of any of the following events or circumstances (regardless of whether any such events or circumstances occur with or without the Guarantors knowledge or consent): |
3.1.1 | any time, forbearance or other indulgence given or agreed by any of the Finance Parties to or with any of the Obligors or any other person in respect of any of their obligations under the Loan Agreement and each other Transaction Document to which any of the Obligors or that other person is a party; or | ||
3.1.2 | any legal limitation, disability or incapacity relating to any of the Obligors; or | ||
3.1.3 | any invalidity, irregularity, unenforceability, imperfection or avoidance of or any defect in any security granted by, or the obligations of any of the Obligors or any other person under, the Loan Agreement and each other Transaction Document to which any of the Obligors or that other person is |
3
a party or any amendment to or variation thereof or of any other document or security comprised therein; or | |||
3.1.4 | any change in the name, constitution, memorandum of association or otherwise of any of the Obligors or the amalgamation or merger of any of the Obligors with any other corporate entity; or | ||
3.1.5 | the liquidation, bankruptcy or dissolution (or proceedings analogous thereto) of any of the Obligors or any other person or the appointment of a receiver or administrative receiver or administrator or trustee or similar officer of any of the assets of any of the Obligors or any other person or the occurrence of any circumstances whatsoever affecting any Obligors or that other persons liability to discharge its obligations under the Loan Agreement and each other Transaction Document to which it is a party; or | ||
3.1.6 | any challenge, dispute or avoidance by any liquidator of any of the Obligors or any other person in respect of any claim by the Guarantor by right of subrogation in any such liquidation; or | ||
3.1.7 | any release of any other Obligor or any other person or any renewal, exchange or realisation of any security or obligation provided under or by virtue of any of the Transaction Documents or the provision to any of the Finance Parties at any time of any further security for the obligations of the Borrower under any of the Transaction Documents; or | ||
3.1.8 | the release of any co-guarantor and/or indemnitor who is now or may hereafter become under a joint and several liability with the Guarantor under this Deed or the release of any other guarantor, indemnitor or other third party obligor in respect of the obligations of any Obligor under any of the Transaction Documents; or | ||
3.1.9 | any failure on the part of any of the Finance Parties (whether intentional or not) to take or perfect any security agreed to be taken under or in relation to any of the Transaction Documents or to enforce any of the Transaction Documents; or | ||
3.1.10 | any other act, matter or thing (save for repayment in full of the Outstanding Indebtedness) which might otherwise constitute a legal or equitable discharge of any of the Guarantors obligations under this Deed. |
3.2 | The Guarantors liability to the Beneficiaries under this Deed shall not be discharged by reason of any of the events or circumstances referred to in Clause 3.1 in so far as they relate to Coface. |
4 | Continuing Guarantee |
4.1 | This Deed shall be: |
4.1.1 | a continuing guarantee remaining in full force and effect until irrevocable payment in full has been received by the Beneficiaries of each and every part and the ultimate balance of the Outstanding Indebtedness in accordance with the Loan Agreement and each other Security Document to which any of the Obligors is a party; and |
4
4.1.2 | in addition to and not in substitution for or in derogation of any other security held by any of the Finance Parties from time to time in respect of the Outstanding Indebtedness or any part thereof. |
4.2 | Any satisfaction of obligations by the Guarantor to the Beneficiaries or any discharge given by the Beneficiaries to the Guarantor or any other agreement reached between the Beneficiaries and the Guarantor in relation to this Deed shall be, and be deemed always to have been, void ab initio if any act satisfying any of the said obligations or on the faith of which any such discharge was given or any such agreement was entered into is subsequently avoided in whole or in part by or pursuant to any provision of any applicable law whatsoever. | ||
4.3 | This Deed shall remain the property of the Beneficiaries and, notwithstanding that all monies and liabilities due or incurred by any of the Obligors to the Beneficiaries which are guaranteed hereunder shall have been paid or discharged, the Beneficiaries shall be entitled not to discharge this Deed or any security held by the Beneficiaries for the obligations of the Guarantor hereunder for such period as may in the reasonable opinion of the Beneficiaries be necessary or appropriate under any applicable insolvency law after the last of such monies and liabilities have been paid or discharged and in the event of bankruptcy, winding-up or any similar proceedings being commenced in respect of any of the Obligors or any other person, the Beneficiaries shall be at liberty not to discharge this Deed or any security held by the Beneficiaries for the obligations of the Guarantor hereunder for and during such further period as the Beneficiaries may determine at their sole discretion. |
5 | Exclusion of the Guarantors Rights |
5.1 | Until the obligations of the Obligors under the Loan Agreement and each other Security Document to which they are a party have been fully performed, the Guarantor shall not: |
5.1.1 | be entitled to share in or succeed to or benefit from (by subrogation or otherwise) any rights which the Beneficiaries may have in respect of the Outstanding Indebtedness or any security therefor or all or any of the proceeds of such rights or security; or | ||
5.1.2 | without the prior written consent of the Beneficiaries: |
(a) | exercise in respect of any amount paid by the Guarantor hereunder any right of indemnity, subrogation, contribution or any other right or remedy which it may have in respect thereof; or | ||
(b) | claim payment of any other monies for the time being due to the Guarantor or to which it may become entitled or exercise or enforce or benefit from any other right, remedy or security in respect thereof; or | ||
(c) | prove in a liquidation of any Obligor in competition with the Beneficiaries for any monies owing to the Guarantor by any other Obligor on any account whatsoever, |
5
PROVIDED ALWAYS that if the Guarantor, in breach of this Clause, receives or recovers any monies pursuant to any such exercise, claim or proof, such monies shall be held by the Guarantor as trustee upon trust for the Beneficiaries to apply the same as if they were monies received or recovered by the Beneficiaries under this Deed. |
6 | Payments |
6.1 | Each payment to be made by the Guarantor hereunder shall be made in immediately available funds in the currency in which such payment is due without set-off, counterclaim, deduction or retention of any kind by payment to such bank account or accounts as the Agent may from time to time notify to the Guarantor in writing. | ||
If the Guarantor is required by law to make such a payment subject to the deduction or withholding of Taxes, in which case the sum payable by the Guarantor in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Lenders receive and retain (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which they would have received and so retained had no such deduction or withholding been made or required to be made. | |||
6.2 | Without prejudice to the provisions of Clause 6.1, if any Lender or the Agent on the Lenders behalf is required to make any payment on account of Tax (not being a tax imposed on the net income of its Office by the jurisdiction in which it is incorporated or in which its Office is located or any other tax existing and applicable on the date of this Deed under the laws of any jurisdiction) on or in relation to any sum received or receivable hereunder by such Lender or the Agent on the Lenders behalf (including, without limitation, any sum received or receivable under this Clause 6) or any liability in respect of any such payment is asserted, imposed, levied or assessed against such Lender or the Agent on the Lenders behalf, the Guarantor shall, upon demand of the Agent, indemnify such Lender or the Agent against such payment or liability, together with any interest, penalties and expenses payable or incurred in connection therewith, other than interest, penalties, and expenses that are otherwise imposed or asserted on account of the bad faith or wilful neglect of such Lender or the Agent. | ||
If any Lender proposes to make a claim under the provisions of this Clause 6.2 it shall certify to the Guarantor in reasonable detail within thirty (30) days (or such longer period as any Lender may reasonably require) after becoming aware of the event by reason of which it is entitled to make its claim or claims the basis of its claim or claims, such certificate to be conclusive, save for manifest error. | |||
6.3 | The certificate of the Agent from time to time as to sums owed by any Obligor under the Security Documents and sums owed by the Guarantor hereunder shall, save for manifest error, be conclusive and binding for all purposes and prima facie evidence of the existence and extent of such debts in any legal action or proceedings arising in connection herewith. | ||
6.4 | If the Guarantor makes any payment hereunder in respect of which it is required by law to make any deduction or withholding for Taxes, it shall pay the full amount to be deducted or withheld to the relevant taxation or other authority |
6
within the time allowed for such payment under applicable law and shall deliver to the Agent within thirty (30) days after it has made such payment to the applicable authority any original receipt issued by such authority evidencing the payment to such authority of all amounts so required to be deducted or withheld from such payment. | |||
If an additional payment is made under Clause 6.1 and any Lender or the Agent on its behalf determines that it has received or been granted a credit against or relief of or calculated with reference to the deduction or withholding giving rise to such additional payment, such Lender or the Agent (as the case may be) shall, to the extent that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment and provided that it has received the cash benefit of such credit, relief or remission, pay to the Guarantor such amount as such Lender or the Agent shall in its reasonable opinion have concluded to be attributable to the relevant deduction or withholding. Any such payment shall be conclusive evidence of the amount due to the Guarantor hereunder and shall be accepted by the Guarantor in full and final settlement of its rights of reimbursement hereunder in respect of such deduction or withholding. Nothing herein contained shall interfere with the right of any Lender and the Agent to arrange their respective tax affairs in whatever manner they think fit. |
7 | Enforcement |
7.1 | The Beneficiaries shall not be obliged before taking steps to enforce this Deed to take any action whatsoever against any of the Obligors or any other person and the Guarantor hereby waives all such formalities or rights to which it would otherwise be entitled or which the Beneficiaries would otherwise first be required to satisfy or fulfil before proceeding or making demand against the Guarantor hereunder provided that the Beneficiaries shall not be entitled to enforce their rights under this Deed otherwise than in circumstances which would constitute an Event of Default. |
8 | Representations and Warranties |
8.1 | Duration |
8.1.1 | The representations and warranties in Clause 8.2 shall survive the execution of this Deed and shall be deemed to be repeated, with reference mutatis mutandis to the facts and circumstances subsisting, as if made on each day until each Obligor has no remaining obligations, actual or contingent, under or pursuant to the Loan Agreement or any of the other Security Documents. | ||
8.1.2 | The representations and warranties in Clause 8.3 shall survive the execution of this Deed and shall be deemed to be repeated, with reference mutatis mutandis to the facts and circumstances subsisting, as if made on the date falling sixty (60) days before the Intended Delivery Date and thereafter on each day until each Obligor has no remaining obligations, actual or contingent, under or pursuant to the Loan Agreement or any of the other Security Documents. |
8.2 | Continuing representations and warranties The Guarantor represents and warrants to the Beneficiaries that: |
7
8.2.1 | it is a limited liability exempt company, duly incorporated and validly existing under the laws of Bermuda, possessing perpetual corporate existence, the capacity to sue and be sued in its own name and the power to own its assets and carry on its business as it is now being conducted; | ||
8.2.2 | The Guarantor is and shall remain, after the giving of this Deed, solvent in accordance with the laws of Bermuda and the United Kingdom and in particular with the provisions of the Insolvency Act 1986 (as from time to time amended) and the requirements thereof; | ||
8.2.3 | it has the power to enter into and perform this Deed and all necessary corporate or other action has been taken to authorise the entry into and performance of this Deed; | ||
8.2.4 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
8.2.5 | the entry into and performance of this Deed and the transactions contemplated hereby do not and will not be a breach of or conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on any of its assets pursuant to the provisions of any such agreement or document; | |||
8.2.6 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and the transactions contemplated hereby have been obtained or effected and are in full force and effect; | ||
8.2.7 | all information furnished by or on behalf of the Guarantor relating to the business and affairs of any member of the Group in connection with this Deed was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; | ||
8.2.8 | the Guarantor has fully disclosed to the Lenders through the Agent all facts relating to the Group which it knows or should reasonably know and which might reasonably be expected to influence the Lenders in deciding whether or not to enter into the Loan Agreement; | ||
8.2.9 | the Accounts for the financial year ended 31 December 2005 (which accounts have been prepared in accordance with GAAP) fairly represent the consolidated financial condition of the Guarantor as at 31 December 2005; |
8
8.2.10 | the claims of the Beneficiaries against the Guarantor under this Deed will rank at least pari passu with the claims of all other unsecured creditors of the Guarantor other than claims of such creditors to the extent that the same are statutorily preferred; | ||
8.2.11 | subject to Clause 10.6, no member of the Group has taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of the Guarantors knowledge and belief) threatened against any member of the Group for its winding-up and/or dissolution or for the appointment of a liquidator, administrator, receiver, administrative receiver trustee or similar officer of it or any or all of its assets or revenues nor has any member of the Group sought any other relief under any applicable insolvency or bankruptcy law; | ||
8.2.12 | neither the Guarantor nor any of its assets enjoys any right of immunity from set-off, suit or execution in respect of its obligations under this Deed; | ||
8.2.13 | all the shares in the Borrower and the Manager shall be legally and beneficially owned directly or indirectly by the Guarantor and such structure shall remain so throughout the Security Period. Further, no Event of Default has occurred under Clause 11.2 in respect of the ownership and/or control of the shares in the Guarantor; and | ||
8.2.14 | it has reviewed and agrees to all the terms and conditions of the Loan Agreement and each other Security Document to which any Obligor is or is to be a party. |
8.3 | Semi-continuing representations and warranties The Guarantor represents and warrants to the Beneficiaries that: |
8.3.1 | no event has occurred and remains unremedied which constitutes a default under or in respect of any agreement or document to which the Guarantor is a party or by which it may be bound (including, inter alia, this Deed); | ||
8.3.2 | no litigation, arbitration or administrative proceedings are current or pending or to its knowledge threatened, which might, if adversely determined, have a material adverse effect on the ability of the Guarantor to perform its obligations under this Deed, save as disclosed by the Guarantor in its most recent US Securities Exchange Commission filing; | ||
8.3.3 | to the best of its knowledge, each of the Obligors has complied with all taxation laws in all jurisdictions in which it is subject to Taxation and has paid all Taxes due and payable by it including but without limitation any disputed Taxes unless a sufficient reserve has been made pending resolution of the dispute and no material claims are being asserted against any of the Obligors with respect to Taxes, which might, if such claims were successful, have a material adverse effect on the ability of that Obligor to perform its obligations under the Transaction Documents to which it is a party; and |
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8.3.4 | the Guarantor does not have a place of business in any jurisdiction which would require this Deed to be filed or registered (if it had a place of business in that jurisdiction) to ensure the validity of this Deed. |
9 | General Undertakings: Positive Covenants |
9.1 | The undertakings contained in this Clause 9 shall remain in full force and effect from the date of this Deed until the end of the Security Period. | ||
9.2 | The Guarantor will provide to the Agent: |
9.2.1 | as soon as practicable (and in any event within one hundred and twenty (120) days after the close of each of its financial years) a Certified Copy of its Accounts (commencing with the audited accounts made up to 31 December 2005); | ||
9.2.2 | as soon as practicable (and in any event within sixty (60) days after the close of each quarter of each financial year) a copy of the unaudited consolidated accounts of the Guarantor for that quarter (commencing with the unaudited accounts made up to 30 June 2006); | ||
9.2.3 | as soon as practicable (and in any event within one hundred and twenty (120) days after the close of each financial year), beginning with the year ending 31 December 2006, annual cash flow projections on a consolidated basis of the Guarantor showing on a monthly basis advance ticket sales (for at least twelve (12) months following the date of such statement) for the Group; and | ||
9.2.4 | as soon as practicable (and in any event not later than 31 January of each financial year): |
(a) | a budget for the Group for such new financial year including a twelve (12) month liquidity budget for such new financial year; and | ||
(b) | updated financial projections of the Group for at least the next five (5) years and an outline of the assumptions supporting such budget and financial projections including but without limitation any scheduled drydrockings; |
9.2.5 | on the date of this Deed, in the case of the first, on the date falling ninety (90) days before the Intended Delivery Date, in the case of the second, and otherwise as soon as practicable (and in any event within sixty (60) days after the close of each of the first three (3) quarters of its financial year and within one hundred and twenty (120) days after the close of each financial year) a statement signed by the Groups chief financial officer in the form of Schedule 1 (commencing with the second quarter of the financial year ending 31 December 2006); | ||
9.2.6 | promptly, such further information in its possession or control regarding its financial condition and operations and those of any company in the Group, including but without limitation a corporate structure chart for the |
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Group including details of the percentage of the shareholdings held, as the Agent may request for the benefit of the Finance Parties; and | |||
9.2.7 | details of any material litigation, arbitration or administrative proceedings which affect any Obligor as soon as the same are instituted and served, or, to the knowledge of the Guarantor, threatened (and for this purpose proceedings shall be deemed to be material if they involve a claim in an amount exceeding [**] [Confidential Treatment] million Dollars [**] [Confidential Treatment] or the equivalent in another currency). |
All accounts required under this Clause 9.2 shall be prepared in accordance with GAAP and shall fairly represent the financial condition of the relevant company. In this Clause 9.2 Group shall have the meaning ascribed to it in Clause 11.4. | |||
9.3 | Subject to the provisions of Clause 11.3, the Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received by the Guarantor by way of dividend promptly. | ||
9.4 | The Guarantor will keep proper books of record and account in which proper and correct entries shall be made of all financial transactions and the assets, liabilities and business of the Guarantor in accordance with GAAP. | ||
9.5 | The Guarantor will notify the Agent of any Event of Default forthwith upon the Guarantor becoming aware of the occurrence thereof. | ||
9.6 | The Guarantor will procure that all such authorisations, approvals, consents, licences and exemptions as may be required under any applicable law or regulation to enable it to perform its obligations under, and ensure the validity or enforceability of, this Deed are obtained and promptly renewed from time to time and will promptly furnish certified copies thereof to the Agent upon request and will procure that the terms of the same are complied with at all times. | ||
9.7 | The Guarantor will do all such things as are necessary to maintain its corporate existence in good standing and will ensure that it has the right and is duly qualified to conduct its business as it is conducted in all applicable jurisdictions and will obtain and maintain all franchises and rights necessary for the conduct of its business. |
10 | General Undertakings: Negative Covenants |
10.1 | The undertakings contained in this Clause 10 shall remain in full force from the date of this Deed until the end of the Security Period. | ||
10.2 | Except with the prior written consent of the Agent (acting on the instructions of the Lenders in the case of a sale of the Vessel pursuant to Clause 10.2.1), the Guarantor will not, and will procure that no other member of the Group will, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, agree to or actually sell, assign, abandon or otherwise transfer or dispose of all or any of its assets or any share or interest therein except that: |
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10.2.1 | the Borrower may agree to sell the Vessel on the condition that contemporaneously with the completion of the sale the Loan is prepaid in accordance with the provisions of clause 11 of the Loan Agreement; | ||
10.2.2 | the Borrower may let the Vessel on charter in accordance with the provisions of clause 10 of the Loan Agreement; | ||
10.2.3 | disposals may be made in the ordinary course of trading of the disposing entity (excluding disposal of ships) including without limitation, the payment of cash as consideration for the purchase or acquisition of any asset or service or in the discharge of any obligation incurred for value in the ordinary course of trading; | ||
10.2.4 | disposals may be made (other than by the Borrower) to another member of the Group; | ||
10.2.5 | disposals of cash raised or borrowed may be made for the purposes for which such cash was raised or borrowed; | ||
10.2.6 | disposals of assets in exchange for other assets comparable or superior as to type and value may be made; and | ||
10.2.7 | a vessel owned by any member of the Group (other than the Borrower) may be sold provided such sale is on a willing seller willing buyer basis at or about market rate and at arms length subject always to the provisions of any loan documentation for the financing of such vessel. |
10.3 | Except with the prior written consent of the Agent, the Guarantor will not, and will procure that no other member of the Group will, make any loan or advance or extend credit to any person, firm or corporation except in the ordinary course of business (in this Clause, Group shall exclude the Borrower). | ||
10.4 | The Guarantor will not, and will procure that no other member of the Group will, issue or enter into any one (1) or more guarantee or indemnity or otherwise become directly or contingently liable for the obligations of any other person, firm or corporation without notifying the Agent promptly thereafter with full details of the amount(s) and the period(s) of the guarantee(s) or indemniteeies), if such is or are in excess of (in aggregate (if applicable)) the amount of [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]. | ||
10.5 | Except with the prior written consent of the Agent, the Guarantor will not, and will procure that no other member of the Group will, make or threaten to make any substantial change in its business as presently conducted, or carry on any other business which is substantial in relation to its business as presently conducted so as to affect, in the reasonable opinion of the Agent, the ability of the Guarantor or the Borrower to perform its obligations under the Security Documents to which it is a party PROVIDED THAT any new leisure or hospitality venture embarked upon by any member of the Group shall not constitute a substantial change in its business (in this Clause, Group shall exclude the Borrower). | ||
10.6 | The Guarantor and any other member of the Group may enter into any amalgamation, restructure, substantial reorganisation, merger, de-merger, |
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consolidation, winding-up, dissolution or anything analogous to the foregoing or acquire any equity, share capital or obligations of any corporation or other entity if such entry or acquisition would not: |
10.6.1 | imperil the security created by any of the Security Documents or the Coface Insurance Policy; | ||
10.6.2 | affect the ability of any Obligor duly to perform any of its obligations under any Security Document to which it may be a party at any time; or | ||
10.6.3 | affect the ability of the Guarantor to comply with the financial undertakings contained in Clause 11, |
after any such amalgamation, restructure, substantial reorganisation, merger, de-merger, consolidation, winding-up, dissolution or anything analogous to the foregoing or acquisition of any equity, share capital or obligations of any corporation or other entity (in this Clause, Group shall exclude the Borrower). |
10.7 | Except with the prior written consent of the Agent, the Guarantor will not alter its financial year end. | ||
10.8 | The Guarantor has not taken and shall not take from any other Obligor any security or counter-security in respect of any of its obligations under this Deed PROVIDED ALWAYS that if the Guarantor, in breach of this Clause, takes any security or counter-security as aforesaid, such security shall be held by the Guarantor as trustee upon trust for the Beneficiaries. |
11 | Financial Undertakings and Ownership and Control of the Guarantor |
11.1 | The Guarantor will ensure that for the financial quarter ending as at 30 June 2006, for the financial quarter ending immediately prior to or on the date falling ninety (90) days before the Intended Delivery Date and for each subsequent financial quarter: |
11.1.1 | at all times the minimum Free Liquidity will be not less than [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]; | ||
11.1.2 | either: |
(a) | as at the end of each financial quarter the ratio of Consolidated EBITDA to Consolidated Debt Service for the Group, computed for the period of the four (4) consecutive financial quarters ending at the end of the relevant financial quarter, shall not be less than [**] [Confidential Treatment] to [**] [Confidential Treatment]; or | ||
(b) | at all times during the period of twelve (12) months ending as at the end of the relevant financial quarter the Group has maintained a minimum Free Liquidity in an amount which is not less than [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]; and |
11.1.3 | as at the end of each financial quarter the ratio of Total Net Funded Debt to Total Capitalisation of the Group shall not exceed: |
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(a) | [**] [Confidential Treatment] to [**] [Confidential Treatment] for financial quarters ending on or before 31 December 2007; and | ||
(b) | [**] [Confidential Treatment] to [**] [Confidential Treatment] for each subsequent financial quarter. |
Amounts available for drawing under any revolving or other credit facilities of the Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
11.2 | It will be an Event of Default if: |
11.2.1 | at any time when the ordinary share capital of the Guarantor is not publicly listed on an Approved Stock Exchange or at any time when a dividend is paid to the existing shareholders of the Guarantor by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Lim Family together or individually do not, directly or indirectly, control the Guarantor and beneficially own, directly or indirectly, at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or | ||
11.2.2 | at any time following the listing of the ordinary share capital of the Guarantor on an Approved Stock Exchange: |
(a) | any individual or any Third Party: |
(i) | owns legally and/or beneficially and either directly or indirectly at least [**] [Confidential Treatment] per cent [**] [Confidential Treatment] of the ordinary share capital of the Guarantor; or | ||
(ii) | has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the Guarantor; |
and, at the same time as any of the events described in paragraphs (i) or (ii) of this Clause has occurred and remains unremedied, the Lim Family together or individually do not, directly or indirectly, beneficially own at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or |
(b) | the Guarantor ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Agent, |
(and, for the purpose of this Clause 11.2.2 control of any company, limited partnership or other legal entity (a body corporate ) by a member of the Lim Family, means that one (1) or more members of the Lim Family has, directly or indirectly, the power to direct the management and policies of such a body corporate, whether through the ownership of more than fifty per cent (50%) of the issued voting capital of that body corporate or by contract, trust or other arrangement). |
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11.3 | During any financial year of the Guarantor until the date on which the Guarantor becomes a listed company on an Approved Stock Exchange (on which date the restriction contained in this Clause 11.3 shall cease to apply), the Guarantor shall not and shall procure that no other member of the Group shall, pay any dividends or make any other distributions in respect of its share capital to any person or make any repayments of capital or payments of interest in respect of Financial Indebtedness to an Affiliate of the Guarantor (other than to the Guarantor and/or its wholly owned Subsidiaries) which during any financial year of the Guarantor in aggregate exceeds [**] [Confidential Treatment] per cent [**] [Confidential Treatment] of the Consolidated Net Income (if positive) of the Group for such financial year, PROVIDED HOWEVER THAT the Group shall not be entitled to pay any dividend or make any distribution in respect of any of its share capital or make any repayments of capital or payments of interest if an Event of Default has occurred and remains unremedied or would occur as a result of the payment of such dividend or the making of such distribution. | ||
11.4 | In Clause 11.1, Clause 11.2, Clause 11.3 and Schedule 1: |
11.4.1 | Affiliate means, with respect to any person, any other person controlling, controlled by or under common control with, such person and for purposes of this definition, control (including, with correlative meanings, the terms controlling, controlled by and under common control with), as applied to any person, means the possession, directly or indirectly, of the power to vote ten per cent (10%) or more of the securities having voting power for the election of directors of such person, or otherwise to direct or cause the direction of the management and policies of that person, whether through the ownership of voting securities or by contract or otherwise; | ||
11.4.2 | Approved Stock Exchange means the New York Stock Exchange, NASDAQ or such other stock exchange in the United States of America as is approved in writing by the Agent; | ||
11.4.3 | Cash Balance means, at any date of determination, the unencumbered and otherwise unrestricted cash and cash equivalents of the Group; | ||
11.4.4 | Consolidated Debt Service means, for any relevant period, the sum (without double counting), determined in accordance with GAAP, of: |
(a) | the aggregate principal payable or paid during such period on any Indebtedness of any member of the Group, other than: |
(i) | principal of any such Indebtedness prepaid at the option of the relevant member of the Group; | ||
(ii) | principal of any such Indebtedness prepaid upon the sale or Total Loss of any vessel owned or leased under a capital lease by any member of the Group; and | ||
(iii) | balloon payments of any such Indebtedness payable during such period (and for the purpose of this paragraph (iii) a balloon payment shall not include any |
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scheduled repayment instalment of such Indebtedness which forms part of the balloon); |
(b) | Consolidated Interest Expense for such period; | ||
(c) | the aggregate amount of any dividend or distribution of present or future assets, undertakings, rights or revenues to any shareholder of any member of the Group (other than the Guarantor or one of its wholly owned Subsidiaries) or any distribution in respect of share capital during such period (Distributions) ; and | ||
(d) | all rent under any capital lease obligations by which the Guarantor or any consolidated Subsidiary is bound which are payable or paid during such period and the portion of any debt discount that must be amortised in such period, |
as calculated in accordance with GAAP and derived from the then latest unaudited consolidated accounts of the Guarantor delivered to the Agent in the case of any period ending at the end of any of the first three (3) financial quarters of each financial year of the Guarantor and the then latest Accounts delivered to the Agent in the case of the final quarter of each such financial year; | |||
11.4.5 | Consolidated EBITDA means, for any relevant period, the aggregate of: |
(a) | Consolidated Net Income from the Guarantors operations for such period; and | ||
(b) | the aggregate amounts deducted in determining Consolidated Net Income for such period in respect of gains and losses from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortisation, impairment charges and any other non-cash charges and deferred income tax expense for such period; |
11.4.6 | Consolidated Interest Expense means, for any relevant period, the consolidated interest expense (excluding capitalised interest) of the Group for such period; | ||
11.4.7 | Consolidated Net Income means, for any relevant period, the consolidated net income (or loss) of the Group for such period as determined in accordance with GAAP; | ||
11.4.8 | Free Liquidity means, at any date of determination, the aggregate of the Cash Balance and any amounts freely available for drawing under any revolving or other credit facilities of the Group, which remains undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six (6) months; |
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11.4.9 | Group means, for the purposes of this Clause 11, the Guarantor, its Subsidiaries and any other entity which is required to be consolidated in the Guarantors accounts in accordance with GAAP; | ||
11.4.10 | Indebtedness means Financial Indebtedness (whether present or future, actual or contingent, long-term or short-term, secured or unsecured) in respect of: |
(a) | moneys borrowed or raised; | ||
(b) | the advance or extension of credit (including interest and other charges on or in respect of any of the foregoing); | ||
(c) | the amount of any liability in respect of leases which, in accordance with GAAP, are capital leases; | ||
(d) | the amount of any liability in respect of the purchase price for assets or services payment of which is deferred for a period in excess of one hundred and eighty (180) days; | ||
(e) | all reimbursement obligations whether contingent or not in respect of amounts paid under a letter of credit or similar instrument; and | ||
(f) | (without double counting) any guarantee of Financial Indebtedness falling within paragraphs (a) to (e) above; |
PROVIDED THAT the following shall not constitute Indebtedness: |
(i) | loans and advances made by other members of the Group which are subordinated to the rights of the Finance Parties; | ||
(ii) | loans and advances made by the Guarantors parent company which are subordinated to the rights of the Finance Parties; and | ||
(iii) | any liabilities of the Guarantor or any other member of the Group to a counterparty under any master agreement relating to the interest or currency exchange transactions of a non-speculative nature. |
11.4.11 | Lim Family means: |
(a) | Tan Sri Lim Goh Tong; | ||
(b) | his spouse; | ||
(c) | his direct lineal descendants; | ||
(d) | the personal estate of any of the above persons; and | ||
(e) | any trust created for the benefit of one or more of the above persons and their estates; |
11.4.12 | Third Party means any person or group of persons acting in concert (as the expression acting in concert is defined in the City Code on |
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Take-overs and Mergers) who or which is not a member of the Lim Family; | |||
11.4.13 | Total Capitalisation means, at any date of determination, Total Net Funded Debt plus the consolidated stockholders equity of the Group at such date determined in accordance with GAAP and derived from the then latest unaudited and consolidated accounts of the Guarantor delivered to the Agent in the case of the first three (3) quarters of each financial year and the then latest Accounts delivered to the Agent in the case of the final quarter of each financial year; | ||
11.4.14 | Total Net Funded Debt means, as at any relevant date: |
(a) | Indebtedness of the Group; and | ||
(b) | the amount of any Indebtedness of any person which is not a member of the Group but which is guaranteed by a member of the Group as at such date; |
less an amount equal to any Cash Balance as at such date. |
11.5 | Save as specified in Clause 11.1.2, the ratios referred to in Clause 11.1 will be measured on a quarterly basis by reference to the consolidated accounts of the Guarantor. |
12 | Discharge |
12.1 | Subject to Clause 4.3, following the irrevocable repayment or payment to the Lenders or the Agent (for itself and on behalf of the Lenders) of all the Outstanding Indebtedness the Beneficiaries will at the Guarantors request return this Deed to the Guarantor and shall, at the request and cost of the Guarantor, transfer to the Guarantor such rights as the Beneficiaries may at such time have in the security for the Outstanding Indebtedness and to the proceeds of any such rights or security. |
13 | Assignment and Transfer |
13.1 | This Deed shall be binding upon and enure to the benefit of the Beneficiaries and their successors and permitted assigns and transferees. | ||
13.2 | The Guarantor shall not be entitled to assign or transfer all or any part of its rights, benefits or obligations under this Deed. | ||
13.3 | The Lenders and/or the Agent may transfer their respective rights hereunder to any person to whom their respective rights and obligations under the Loan Agreement are transferred in accordance with the Loan Agreement. | ||
13.4 | Any Finance Party may disclose to any of its Affiliates and to the following other persons: |
(a) | any person to (or through) whom that Lender assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this Deed; |
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(b) | any person with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Deed or any Obligor; | ||
(c) | any person to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation; | ||
(d) | any other Finance Party, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; | ||
(e) | Coface, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; | ||
(f) | the Guarantor or any other member of the Group, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; or | ||
(g) | auditors, insurance and reinsurance brokers, insurers and reinsurers and professional advisers, including legal advisers, which need to know such information, |
any information about any Obligor, this Deed and the other Security Documents as that Finance Party shall consider appropriate. Each of the Finance Parties may also disclose to the Builder, or any employee, officer, director or representative of the Builder which needs to know such information or receive such document in the course of such persons employ or duties, such information about any Obligor, this Deed and the other Security Documents as that Finance Party reasonably considers normal practice for a French export credit. | |||
Each of the Finance Parties acknowledges that all information received now or in the future from or on behalf of the Obligors under or pursuant to or in connection with the Transaction Documents or the Coface Insurance Policy (other than any information which is in the public domain other than as a result of a breach of this Clause) is confidential information and undertakes to advise this fact to any recipient of any such information under this Clause. | |||
13.5 | A person (including any body of persons) who is not a party to this Deed has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Deed but this does not affect any right or remedy of a third party which exists or is available apart from that Act. |
14 | Miscellaneous Provisions |
14.1 | No failure to exercise and no delay in exercising on the part of the Beneficiaries or any of the other Finance Parties any right or remedy under this Deed or under any other of the Security Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. No waiver by the |
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Beneficiaries or any of the other Finance Parties shall be effective unless it is in writing. | |||
14.2 | The rights and remedies of the Finance Parties provided herein and in the other Security Documents are cumulative and not exclusive of any rights or remedies provided by law. | ||
14.3 | If any provision of this Deed or the Loan Agreement or any other Security Document to which any Obligor is a party is prohibited or unenforceable in any jurisdiction, such prohibition or unenforceability shall not invalidate the remaining provisions hereof or thereof or affect the validity or enforceability of such provision in any other jurisdiction. | ||
14.4 | Time is of the essence in respect of all of the obligations of the Guarantor under this Deed. |
15 | Waiver of Immunity |
15.1 | The Guarantor irrevocably and unconditionally: |
15.1.1 | waives any right of immunity which it or its assets now has or may hereafter acquire in relation to any legal proceedings (including, but without limitation, actions in rem and/or in personam) brought against it or its assets by the Beneficiaries in relation to this Deed; and | ||
15.1.2 | consents generally in respect of any such proceedings to the giving of any relief including, without limitation, the issue of any process in connection with such proceedings and the making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgment which may be made or given in such proceedings. |
16 | Notices |
16.1 | Each notice, demand or other communication to be made under this Deed shall be made in writing which, unless otherwise stated, includes telefax. | ||
16.2 | Any notice, demand or other communication to be made or delivered by the Agent to the Guarantor pursuant to this Deed shall (unless the Guarantor has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Guarantor at 7665 Corporation Center Drive, Miami, Florida 33126, United States of America marked for the attention of Ms Bonnie Biumi (telefax no. + 1 305 436 4140) and the Legal Department (telefax no. +1 305 436 4117) and shall be deemed to have been made or delivered (in the case of telefax) when transmission of such telefax communication has been completed or (in the case of any letter) when delivered to the aforesaid address or (as the case may be) five (5) days after being deposited in the post first class postage prepaid in an envelope addressed to it at that address. Any notice, demand or other communication to be made or delivered by the Guarantor to the Agent pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Guarantor specified another address) be made or delivered to the Agent (for itself and on behalf of the Lenders) at its office for the time being which is at present at BNP Paribas, ECEP/Export Finance, ACI:CHDESA1, 37 Place du Marché Saint- Honoré, 75031 Paris Cedex 01, France marked for the attention of |
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Mrs Dominique Laplasse (telefax no. +33 1 43 16 81 84) and shall be deemed to have been made or delivered (in the case of telefax) when transmission of such telefax communication has been completed or (in the case of any letter) when delivered to the aforesaid address or (as the case may be) five (5) days after being deposited in the post first class postage prepaid in an envelope addressed to it at that address. | |||
16.3 | Each notice, demand or other communication made or delivered by one (1) party to the other pursuant to this Deed shall be in the English language or accompanied by a certified English translation. |
17 | Governing Law | |
This Deed shall be governed by and construed in accordance with the laws of England. | ||
18 | Jurisdiction |
18.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed) (a Dispute) . Each party to this Deed agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 18.1 is for the benefit of the Beneficiaries only. As a result, such party shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, such party may take concurrent proceedings in any number of jurisdictions. | |||
18.2 | The Guarantor may not, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Guarantor shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Guarantors process agent with unconditional authority to receive and acknowledge service on behalf of the Guarantor of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
18.3 | For the purpose of securing its obligations under Clause 18.2, the Guarantor irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 18.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Guarantors process agent in England with the unconditional authority described in Clause 18.2. | ||
18.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Guarantor of the service of any process or to forward any process to the Guarantor) shall invalidate any proceedings or judgment. | ||
18.5 | The Guarantor appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. |
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18.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Guarantor and may be enforced without review in any other jurisdiction. | ||
18.7 | Nothing in this Clause shall exclude or limit any right which the Beneficiaries may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | ||
18.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
for and on behalf of
|
) | |||||||
NCL
CORPORATION LTD.
|
) | |||||||
acting by COLIN VEITCH
|
) | |||||||
its duly appointed attorney-in-fact
|
) | |||||||
in the presence of:
|
PAUL ALAN TURNER | ) | ||||||
|
PAUL ALAN TURNER | ) | ||||||
|
SOLICITOR, CLIFFORD CHANCE LLP | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Signature Illegible | ||||||
for and on behalf of
|
) | |||||||
BNP PARIBAS
|
) | |||||||
as a
Lender Sandrine FERDANE
|
) | |||||||
acting by Jean-Daniel AMSLER
|
) | |||||||
its
duly appointed AUTHORIZED SIGNATORIES
|
) | |||||||
in the presence of:
|
Jean Philippe POIRIER | ) | ||||||
|
MANAGER, BNPPARIBAS | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Signature Illegible | ||||||
for and on behalf of
|
) | |||||||
CALYON
|
) | |||||||
acting by Jerome LEBLOND
|
) | |||||||
its duly appointed attorney-in-fact
|
) | |||||||
in the presence of:
|
Jean Philippe POIRIER | ) | ||||||
|
MANAGER, BNPPARIBAS | ) |
22
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | ||||||||||||
for and on behalf of
|
) | ||||||||||||
HSBC FRANCE GILLES PINOT
|
) | ||||||||||||
acting by ERICK RADAT
|
) | Signature Illegible | |||||||||||
its duly appointed Authorized Signatories
|
) | ||||||||||||
in the presence of:
|
Jean Philippe POIRIER | ) | |||||||||||
|
MANAGER, BNPPARIBAS | ||||||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | ||||||||||||
for and on behalf of
|
) | ||||||||||||
SOCIETE GENERALE
|
) | ||||||||||||
acting
by
Isabelle GUILLOU
|
) | Signature Illegible | |||||||||||
its
duly appointed AUTHORIZED SIGNATORY
|
|||||||||||||
Global
Head of Export Finance
|
Export Finance | ) | |||||||||||
in the presence of:
|
Jean Philippe POIRIER | ) | |||||||||||
|
MANAGER, BNPPARIBAS | ||||||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | ||||||||||||
for and on behalf of
|
) | ||||||||||||
BNP PARAIBAS
|
) | ||||||||||||
as the Agent Sandrine FERDANE
|
) | Signature Illegible | |||||||||||
acting by Jean-Daniel AMSLER
|
) | ||||||||||||
its duly appointed AUTHORIZED SIGNATORIES
|
) | ||||||||||||
in the presence of:
|
Jean Philippe POIRIER | ) | |||||||||||
|
MANAGER, BNPPARIBAS |
23
24
Clause (of | ||||||
Guarantee | as of [ ] | Required Covenants | ||||
11.1.1/
|
Free Liquidity | A | A>[**] [Confidential Treatment] | |||
11.1.2(b)
**
|
(11.1.1) ** | |||||
|
||||||
|
A>[**] [Confidential Treatment] | |||||
|
(11.1.2(b)) ** | |||||
|
||||||
11.1.2(a)
|
Consolidated EBITDA: | B | >[**] [Confidential Treatment] | |||
|
||||||
|
Consolidated Debt Service | C | ||||
|
||||||
11.1.3
|
Total Net Funded Debt: | D |
<[**] [Confidential Treatment] up to
31 December 2007 <[**] [Confidential Treatment] thereafter |
|||
|
||||||
|
Total Capitalisation | E |
|
Consolidated EBITDA | |||||||
|
Consolidated Net Income (loss) | x | ||||||
(Deduct)/Add:
|
(Gain)/Loss on sale of assets or reserves | x | ||||||
Add:
|
Consolidated Interest Expense | x | ||||||
Add:
|
Depreciation and amortisation of assets | x | ||||||
Add:
|
Impairment charges | x | ||||||
(Deduct)/Add:
|
Other non-recurring charges (gains) | x | ||||||
Add:
|
Deferred income tax expense | x | ||||||
|
||||||||
|
Consolidated EBITDA | x | B | |||||
|
||||||||
|
Consolidated Debt Service | |||||||
|
Principal paid/payable (excluding balloon payments, voluntary | x | ||||||
|
prepayments/repayments on sale/total loss of an NCLC Fleet | |||||||
|
vessel) | |||||||
Add:
|
Consolidated Interest Expense | x | ||||||
|
Distributions | x | ||||||
|
Rent under capitalised leases | x | ||||||
|
||||||||
|
Consolidated Debt Service | x | C | |||||
|
||||||||
|
Total Net Funded Debt | |||||||
|
Indebtedness | x | ||||||
Add:
|
Guarantees of non-NCLC Group members
obligations |
x | ||||||
|
||||||||
|
x | |||||||
|
||||||||
Deduct:
|
Cash Balance | (x | ) | |||||
|
||||||||
|
Total Net Funded Debt | (x | ) | D | ||||
|
||||||||
|
Total Capitalisation | |||||||
|
Total Net Funded Debt | x | ||||||
Add:
|
Consolidated stockholders equity | x | ||||||
|
||||||||
|
Total Capitalisation | x | E | |||||
|
25
** | Evidence satisfactory to the Agent of A at all times during the relevant period shall be provided together with this statement |
26
Registered Number with | ||||
the Registry of Trade and | ||||
Name | Registered Address | Companies | ||
BNP PARIBAS
(as Agent and Lender) |
16 boulevard des Italiens,
75009 Paris, France |
662 042 449 (RCS Paris) | ||
|
||||
CALYON
(as Lender) |
9 quai du President Paul
Doumer, 92920 Paris La Defense Cedex, France |
304 187 701 (RCS Nanterre) | ||
|
||||
HSBC FRANCE
(as Lender) |
103 avenue des Champs
Elysees, 75419 Paris, Cedex 08, France |
775 670 284 (RCS Paris) | ||
|
||||
SOCIETE GENERALE
(as Lender) |
29 boulevard Haussmann,
75009 Paris, France |
552 120 222 (RCS Paris) | ||
|
||||
each a French société anonyme
|
27
|
Clause | Page | |||||
1.
|
DEFINITIONS AND CONSTRUCTION | 2 | ||||
|
||||||
2.
|
AVAILABILITY OF THE LOAN | 9 | ||||
|
||||||
3.
|
DRAWING | 9 | ||||
|
||||||
4.
|
REPAYMENT OF LOAN AND PAYMENT OF INTEREST | 15 | ||||
|
||||||
5.
|
CLAIMS OR DEFENCES MAY NOT BE OPPOSED TO THE LENDERS | 15 | ||||
|
||||||
6.
|
COFACE PREMIUM | 15 | ||||
|
||||||
7.
|
FEES | 16 | ||||
|
||||||
8.
|
TAXES, INCREASED COSTS, COSTS AND RELATED CHARGES | 17 | ||||
|
||||||
9.
|
REPRESENTATIONS AND WARRANTIES | 19 | ||||
|
||||||
10.
|
UNDERTAKINGS | 24 | ||||
|
||||||
11.
|
PREPAYMENT | 38 | ||||
|
||||||
12.
|
INTEREST ON LATE PAYMENTS | 38 | ||||
|
||||||
13.
|
ACCELERATION - EVENTS OF DEFAULT | 39 | ||||
|
||||||
14.
|
MANDATORY PREPAYMENT | 44 | ||||
|
||||||
15.
|
CURRENCY OF PAYMENT | 44 | ||||
|
||||||
16.
|
SECURITY | 45 | ||||
|
||||||
17.
|
APPLICATION OF SUMS RECEIVED | 45 | ||||
|
||||||
18.
|
CHANGES TO THE LENDERS | 45 | ||||
|
||||||
19.
|
CHANGES TO THE OBLIGORS | 49 | ||||
|
||||||
20.
|
ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS | 49 | ||||
|
||||||
21.
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES | 53 | ||||
|
||||||
22.
|
SHARING AMONG THE FINANCE PARTIES | 54 | ||||
|
||||||
23.
|
PAYMENT MECHANICS | 55 | ||||
|
||||||
24.
|
GOVERNING LAW | 57 | ||||
|
||||||
25.
|
ENFORCEMENT | 57 | ||||
|
||||||
26.
|
APPENDICES | 57 | ||||
|
||||||
27.
|
NOTICES | 57 | ||||
|
||||||
28.
|
MISCELLANEOUS | 58 | ||||
|
||||||
29.
|
COMING INTO FORCE | 58 |
(1) | F3 TWO, LTD. , a company incorporated in and existing under the laws of Bermuda with registration number EC38768 and with its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda (the Borrower ); | |
(2) | THE SEVERAL BANKS , particulars of which are set out in Appendix II as lenders (the Original Lenders ); | |
(3) | THE SEVERAL BANKS , particulars of which are set out in Appendix II as mandated lead arrangers (the Mandated Lead Arrangers ); and | |
(4) | BNP PARIBAS as agent for the lenders (the Agent ). |
(A) | A shipbuilding contract was signed as of 7 September 2006 (the Building Contract ), between the Borrower and Aker Yards S.A. (the Builder ) for the design, construction and delivery of a two thousand one hundred (2,100) passenger cabin cruise vessel having hull no. D33, specification hull no. [**] [Confidential Treatment] dated 7 September 2006, to be ready for delivery on 31 May 2010 (the Vessel ). | |
(B) | The contract price of the Vessel is seven hundred and thirty five million euro (EUR735,000,000) (subject to adjustment in accordance with the terms of the Building Contract) (the Contract Price ), payable at the times and in the manner specified in the Building Contract. The terms of payment of the Contract Price are as follows: |
(i) | [**] [Confidential Treatment] payable within three (3) Working Days (as defined in the Building Contract) after the Effective Date (as defined in the Building Contract); | ||
(ii) | [**] [Confidential Treatment] payable on first steel cutting but not before [**] [Confidential Treatment]; | ||
(iii) | [**] [Confidential Treatment] payable on completion of keel laying but not before [**] [Confidential Treatment]; | ||
(iv) | [**] [Confidential Treatment] payable on the date the Vessel is launched into the water at the yard of the Builder but not before [**] [Confidential Treatment]; and | ||
(v) | the remainder payable upon delivery and acceptance of the vessel. |
(C) | The Contract Price may be increased or decreased from time to time with respect to certain modifications to the Building Contract, the plans or the specification (the Change Orders ). | |
(D) | The Lenders agree to make available to the Borrower a loan facility on the terms and conditions set out herein for the purpose of assisting the Borrower to finance part of the Contract Price (including the amount of the Change Orders) and the related Coface Premium. |
1. | DEFINITIONS AND CONSTRUCTION | |
1.1 | Definitions | |
In this Agreement (including the Recitals) and the Appendices (all of which form an integral part of this Agreement) the following expressions shall have the meanings set out opposite them below. | ||
Affiliate means, with respect to any person, any other person controlling, controlled by or under common control with, such person and for purposes of this definition, control (including, with correlative meanings, the terms controlling , controlled by and under common control with ), as applied to any person, means the possession, directly or indirectly, of the power to vote ten per cent. (10%) or more of the securities having voting power for the election of directors of such person, or otherwise to direct or cause the direction of the management and policies of that person, whether through the ownership of voting securities or by contract of otherwise. | ||
Annex VI means Annex VI (Regulations for the Prevention of Air Pollution from Ships) to the International Convention for the Prevention of Pollution from Ships 1973 (as modified in 1978 and 1997). | ||
Assignment of Earnings means an assignment to be entered into between the Borrower and the Finance Parties and to be in the agreed form. | ||
Assignment of Insurances means an assignment to be entered into between the Borrower, the Manager, if applicable, and the Finance Parties and to be in the agreed form. | ||
Assignment of Management Agreement means an assignment to be entered into between the Borrower and the Finance Parties and to be in the agreed form. | ||
Assignment of Warranty Rights means an assignment to be entered into between the Borrower and the Finance Parties with respect to the Borrowers rights under the post-delivery warranty given by the Builder under the Building Contract. | ||
Availability Termination Date means the date falling [**] [Confidential Treatment] days (being the period stipulated in article 9, clause 2.1(i)(b) of the Building Contract) after [**] [Confidential Treatment]. | ||
Building Contract means that certain contract entered into between the Borrower and the Builder dated as of 7 September 2006, as from time to time amended, in respect of the design, construction and delivery of the Vessel. | ||
Builder means Aker Yards S.A., a company incorporated in France and having its principal office at Avenue Bourdelle B.P. 90180, 44613 Saint-Nazaire Cedex, France, Republic of France. | ||
Business Day means a full day on which commercial banks are open for business and dealing in deposits in New York and Paris. | ||
Certified Copy means, in relation to any document delivered or issued by or on behalf of any company, a copy of such document certified as a true, complete and up-to-date copy of the original by any of the directors or the secretary or assistant secretary or any attorney-in-fact for the time being of that company. |
- 2 -
Change Order Amount means the cost of the Change Orders. | ||
Change Orders means those certain change orders to the specifications of the Vessel as may be agreed to from time to time by the Borrower and the Builder, the net cost of which is payable at delivery. | ||
CIRR (Commercial Interest Reference Rate) means four point eight nine per cent. (4.89%) per annum being the fixed rate in force for medium and long term export credits in euro according to the Organisation for Economic Co-operation and Development rules as determined by the competent French Authorities. | ||
Coface means Compagnie Française dAssurance pour le Commerce Extérieur a French société anonyme with its registered office at 12 Cours Michelet, La Défense, 92800 Puteaux, France, registered with the Registry of Commerce and Companies of Nanterre under number 552 069 791. | ||
Coface Insurance Policy means the insurance policy in respect of this Agreement to be issued by Coface for the benefit of the Lenders, in form and substance satisfactory to the Agent and the Lenders. | ||
Coface Premium means the amount payable by the Borrower to Coface through the Agent on the Delivery Date in respect of the Coface Insurance Policy which shall be [**] [Confidential Treatment] of the Total Financed Contract Price. | ||
Commitment means: |
(a) | in relation to an Original Lender, [**] [Confidential Treatment] of the Maximum Loan Amount and the amount of any other Commitment transferred to it under this Agreement; and | ||
(b) | in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement, |
to the extent not increased, cancelled, reduced or transferred by it under this Agreement. | ||
Compulsory Acquisition means requisition for title or other compulsory acquisition of the Vessel including her capture, seizure, detention or confiscation or expropriation but excluding any requisition for hire by or on behalf of any government or governmental authority or agency or by any persons acting or purporting to act on behalf of any such government or governmental authority or agency. | ||
Contract Price means the total price payable by the Borrower to the Builder for the Vessel in accordance with the Building Contract being, as at the date of the Building Contract, seven hundred and thirty five million euro (EUR735,000,000). | ||
Delivery Date means the date and time stated in the Protocol of Delivery and Acceptance. | ||
Document of Compliance means a document issued to the Vessels operator as evidence of its compliance with the requirements of the ISM Code. | ||
Dollar and USD mean the lawful currency of the United States of America. | ||
Drawdown Date means the date on which the Loan is drawn down and applied in accordance with Clause 2. |
-3-
Drawdown Notice means the drawdown notice and certificate duly executed by the Borrower substantially in the form of Appendix IV. | ||
Earnings means, in respect of the Vessel, (whether earned or to be earned) any and all freights, hire, fares and passage monies, proceeds of requisition (other than proceeds of Compulsory Acquisition), rebates and commissions, all earnings deriving from contracts of employment, demurrage, charterparties, contracts of affreightment, pooling agreements and joint ventures, compensation, remuneration for salvage and towage services, damages howsoever arising and detention monies, damages for breach of any charterparty or other contract for the employment of the Vessel, any amounts payable in consideration of the termination or variation of any charterparty or other such contract and any other earnings whatsoever due or to become due to the Borrower. | ||
Encumbrance means any mortgage, charge, pledge, lien, assignment, hypothecation, title retention, preferential right or trust arrangement or any other security agreement or arrangement. | ||
EONIA means the weighted average overnight rate calculated by the European Central Bank on all overnight unsecured lending transactions carried out in the euro area interbank money market and reported by the panel of reference banks selected for the calculation of the EONIA. This annual rate is published on page 247 of the Bridge/Telerate server or any other page as may replace such page, by the Banking Federation of the European Union prior to the start of operations on the TARGET Day following its reporting to the European Central Bank (D+1) by the reference banks. | ||
euro and EUR means the single currency of the Participating Member States. | ||
Event of Default means any one of the events specified in Clause 13.2. | ||
Facility Office means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five (5) Business Days written notice) as the office or offices through which it will perform its obligations under this Agreement. | ||
Financed Contract Price means the lesser of five hundred and eighty eight million euro (EUR588,000,000) and eighty per cent. (80%) of the Contract Price less the Change Order Amount. | ||
Financed Change Order Amount means the lesser of fifty eight million eight hundred thousand euro (EUR58,800,000) and eighty per cent. (80%) of the Change Order Amount. | ||
Finance Party means the Agent, a Mandated Lead Arranger or a Lender and its successors in title, permitted assignees and permitted transferees. | ||
Financial Indebtedness means any obligation for the payment or repayment of money, whether as principal or as surety and whether present or future, actual or contingent. | ||
French Authorities means the Direction Générale du Trésor et de la Politique Economique of the French Ministry of Economy and Finance, any successors thereto, or any other authority in or of the French Republic having jurisdiction over and responsibility for the provision, management or regulation of the terms, conditions and issuance of export credits in or for the French Republic including (inter alia) such entities to whom authority in respect of extension or administration of export financing matters have been delegated, such as Coface. |
-4-
GAAP means generally accepted accounting principles in the United States of America consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies) including, without limitation, those set forth in the opinion and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board. | ||
Group means the Guarantor and its Subsidiaries. | ||
Guarantee means the guarantee of the obligations of the Borrower under this Agreement to be signed by the Guarantor and to be in the agreed form. | ||
Guarantor means NCL Corporation Ltd., a company incorporated in and existing under the laws of Bermuda with registration number EC34678 and with its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda. | ||
IAPPC means a valid international air pollution prevention certificate for the Vessel issued under Annex VI. | ||
Insurances means all policies and contracts of insurance and entries of the Vessel in a protection and indemnity or war risks association which are effected in respect of the Vessel, her freights, disbursements, profits or otherwise and all benefits, including all claims and returns of premiums thereunder and shall also include all compensation payable by virtue of Compulsory Acquisition. | ||
Intended Delivery Date means 16 November 2009 (the date on which the Vessel will be ready for delivery pursuant to the Building Contract as at the date of this Agreement) or any other date notified by the Borrower to the Agent in accordance with Clause 27 as being the date on which the Vessel will be ready for delivery pursuant to the Building Contract. | ||
ISM Code means the International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organisation. | ||
ISPS Code means the International Ship and Port Facility Security Code adopted by the International Maritime Organisation. | ||
Lender means: |
(a) | any Original Lender; and | ||
(b) | any bank or financial institution which has become a Party in accordance with Clause 18, |
which in each case has not ceased to be a Party in accordance with the terms of this Agreement. | ||
Loan means the aggregate of the amount of the Total Financed Contract Price paid to the Builder pursuant to Clause 2.1.1 and the amount of the Coface Premium reimbursed to the Agent pursuant to Clause 2.1.2 as such amount may be increased or decreased pursuant to the terms of this Agreement or (as the context may require) the amount thereof for the time being drawn down and outstanding hereunder. | ||
Management Agreement means the management agreement entered or to be entered into between the Borrower and the Manager with respect to the Vessel. |
-5-
Manager means NCL (Bahamas) Ltd., a company incorporated in and existing under the laws of Bermuda with registration number EC34680 and with its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda. | ||
Maritime Registry means the maritime registry which the Borrower will specify to the Lenders no later than three (3) months before the Intended Delivery Date, being that of the Bahamas or such other registry as the Lenders may in their discretion agree. | ||
Maximum Loan Amount means the amount of six hundred and sixty two million nine hundred and five thousand three hundred and twenty euro (EUR662,905,320). | ||
Mortgage means the first priority mortgage and, if applicable, deed of covenants collateral thereto over the Vessel in favour of the Finance Parties, to be granted as provided for in Clause 16 and to be in the agreed form. | ||
Obligors means the Borrower, the Guarantor and the Manager. | ||
Participating Member State means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union. | ||
Party means a party to this Agreement. | ||
Permitted Liens means: |
(a) | any Encumbrance created by or pursuant to the Security Documents; and | ||
(b) | liens on the Vessel up to an aggregate amount at any time not exceeding ten million Dollars (USD10,000,000) for current crews wages and salvage and liens incurred in the ordinary course of trading the Vessel; and |
in the case of the Manager in respect of paragraph (d) only and in the case of the Guarantor: |
(c) | any deposits or pledges to secure the performance of bids, tenders, bonds or contracts; | ||
(d) | any other Encumbrance notified by any of the Obligors to the Agent prior to the date hereof; | ||
(e) | any Encumbrance in respect of existing Financial Indebtedness of a person which becomes a Subsidiary of the Guarantor or is merged with or into the Guarantor or any of its Subsidiaries; | ||
(f) | liens on assets leased, acquired or upgraded after the date hereof or assets newly constructed or converted after the date hereof provided that (i) such liens secure Financial Indebtedness otherwise permitted under this Agreement (ii) such liens are incurred within one (1) year following such lease, acquisition, upgrade, construction or conversion and (iii) the Financial Indebtedness secured by such liens does not exceed the cost of such upgrade or the cost of such assets acquired or leased; | ||
(g) | statutory and other similar liens arising in the ordinary course of business unrelated to Financial Indebtedness and securing obligations not yet delinquent or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established; and |
-6-
(h) | liens arising out of the existence of judgments or awards in respect of the Guarantor or any of its Subsidiaries, |
provided that the aggregate amount of all cash and the fair market value of all other property subject to such liens as are described in paragraphs (f) to (h) above does not exceed twenty five million Dollars (USD25,000,000). | ||
Protocol of Delivery and Acceptance means the protocol of delivery and acceptance of the Vessel to be signed by the Borrower and the Builder in accordance with article 7, clause 1.3(i) of the Building Contract. | ||
Safety Management Certificate means a document issued to the Vessel as evidence that the Vessels operator and its shipboard management operate in accordance with an approved Safety Management System. | ||
Safety Management System means a structured and documented system enabling the personnel of the Vessels operator to implement effectively the safety and environmental protection policy of that Vessel operator. | ||
Security Documents means this Agreement, the Guarantee, the Mortgage, the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings, the Assignment of Management Agreement and all such other documents as may be executed at any time in favour of the Finance Parties or any of them as security for the obligations of the Borrower and the other Obligors whether executed pursuant to the express provisions of this Agreement or otherwise howsoever. | ||
Security Period means the period beginning on the Drawdown Date and ending on the date on which the amounts outstanding under this Agreement and under each of the other Security Documents are finally paid or repaid in full. | ||
Subsidiary means, with respect to the Guarantor, any company or corporation of which more than fifty per cent. (50%) of the outstanding share capital having ordinary voting power to elect a majority of the board of directors of such company or corporation (irrespective of whether at the time share capital of any other class or classes of such company or corporation shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned by the Guarantor, by the Guarantor and one or more other Subsidiaries of the Guarantor, or by one or more other Subsidiaries of the Guarantor. | ||
TARGET (Trans-European Automated Real-time Gross settlement Express Transfer) means the European real time gross settlement system managed by the European Central Bank and linking the real time gross settlement systems of the Member States of the European Union. | ||
TARGET Day means the day when the TARGET (Trans-European Automated Real-Time Gross settlement Express Transfer) system is open. | ||
Taxes means all present and future income and other taxes, levies, imposts, deductions, compulsory liens and withholdings whatsoever together with interest thereon and penalties with respect thereto, if any, and any payments made on or in respect thereof and Taxation shall be construed accordingly. | ||
Termination Date means the date falling [**] [Confidential Treatment] years after the Delivery Date. |
-7-
Total Commitments means the aggregate of the Commitments, being six hundred and sixty two million nine hundred and five thousand three hundred and twenty euro (EUR662,905,320). | ||
Total Financed Contract Price means the aggregate of: |
(a) | the Financed Contract Price; and | ||
(b) | the Financed Change Order Amount. |
Total Loss means the actual or constructive or compromised or agreed or arranged total loss or the Compulsory Acquisition of the Vessel, including any such total loss as may arise during a requisition for hire. | ||
Total Loss Date means: |
(a) | in the case of an actual total loss of the Vessel, the actual date on which the Vessel was lost or, if such date is not known, the date on which the Vessel was last reported; or | ||
(b) | in the case of a constructive total loss of the Vessel, or in the case of a compromised or arranged total loss of the Vessel, the date of the event giving rise to the claim for such constructive total loss or to the claim for a compromised or arranged total loss; or | ||
(c) | in the case of a Compulsory Acquisition on the date of the Compulsory Acquisition. |
Transaction Documents means the Security Documents, the Building Contract, the Drawdown Notice, the Management Agreement and any other material document now or hereafter issued in connection with the documents or the transaction referred to in this Agreement. | ||
Transfer Certificate means a certificate substantially in the form set out in Appendix III or any other form agreed between the Agent and the Borrower. | ||
Transfer Date means, in relation to a transfer, the later of: |
(a) | the proposed Transfer Date specified in the Transfer Certificate; and | ||
(b) | the date on which the Agent executes the Transfer Certificate. |
Vessel means the passenger cruise vessel referred to in Recital (A) of this Agreement and more specially described in the Building Contract, and, to the extent the context permits, includes all manuals, logs and technical records relating to the said vessel. | ||
1.2 | Construction | |
References in this Agreement to a document in the agreed form are to the form of the relevant document which is attached to the security letter of the same date as this Agreement or to such other form as the parties hereto may from time to time agree, subject to modification in accordance with the provisions of the security letter. | ||
A person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement. |
-8-
A provision of law including but without limitation a regulation is a reference to that provision or regulation as amended or re-enacted from time to time and a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation. | ||
2. | AVAILABILITY OF THE LOAN | |
2.1 | Commitment | |
Each of the Lenders shall (in proportion to its share of the Total Commitments) make available to the Borrower a loan in a maximum amount of six hundred and two million six hundred and forty one thousand two hundred euro (EUR602,641,200) intended to: |
2.1.1 | be paid to the Builder up to a maximum amount of five hundred and eighty eight million euro (EUR588,000,000) corresponding to eighty per cent. (80%) of the Contract Price of the Vessel prior to any Change Order; | ||
2.1.2 | reimburse the Agent up to an amount of fourteen million six hundred and forty one thousand two hundred euro (EUR14,641,200) corresponding to one hundred per cent. (100%) of the related Coface Premium payable to Coface. |
In the event that the Contract Price for the Vessel prior to any Change Order increases pursuant to the terms of the Building Contract, the Lenders agree, if the Borrower so requests in the Drawdown Notice, to increase the maximum amount of the Loan by: |
2.1.3 | up to an amount of fifty eight million eight hundred thousand euro (EUR58,800,000) (being ten per cent. (10%) of the Financed Contract Price) to pay to the Builder up to eighty per cent. (80%) of the Change Order Amount; and | ||
2.1.4 | up to an amount of [**] [Confidential Treatment] to reimburse the Agent [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of the related Coface Premium payable to Coface. |
2.2 | Purpose | |
The Loan may only be used to pay for goods and services of French origin. However, within the limits and under the conditions fixed by the French Authorities, this may be extended to cover goods and services incorporated in deliveries made by the Builder and originating from countries other than the Borrowers country and France, which have been sub-contracted by the Builder and therefore remain under the Builders responsibility. | ||
3. | DRAWING | |
3.1 | Conditions precedent | |
The Borrower may only draw under the Loan when the following conditions have been fulfilled to the satisfaction of the Lenders and provided no Event of Default shall have occurred and remains unremedied or be likely to occur: |
3.1.1 | No later than the date of this Agreement : |
(a) | Receipt by the Agent of an opinion of legal counsel to the Lenders as to Bermudan law, together with the corporate documentation of the Borrower supporting the opinion, including but without limitation the |
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Memorandum of Association and Bye-laws as filed with the competent authorities and a certificate of a competent officer of the Borrower containing specimen signatures of the persons authorised to sign the documents on behalf of the Borrower, to the effect that: |
(i) | the Borrower has been duly organized and is validly existing as a company under the laws of Bermuda; | ||
(ii) | this Agreement falls within the scope of the Borrowers corporate purpose as defined by its Memorandum of Association and Bye-laws; | ||
(iii) | the Borrowers representatives were at the date of this Agreement fully empowered to sign this Agreement; | ||
(iv) | either all administrative requirements applicable to the Borrower (whether in Bermuda or elsewhere) concerning the transfer of funds abroad and acquisitions of euro to meet its obligations hereunder have been complied with, or that there are no such requirements; and | ||
(v) | this Agreement is the legal, valid and binding obligations of the Borrower enforceable in accordance with their terms (containing such exceptions as are standard for opinions of this type). |
(b) | Receipt by the Agent of an opinion of legal counsel to the Agent as to English law confirming that the obligations of the Borrower under this Agreement are legally valid and binding obligations enforceable by the relevant Finance Parties in the English courts. | ||
(c) | Receipt by the Agent of a Certified Copy of the executed Building Contract. | ||
(d) | Receipt by the Agent of a confirmation from Clifford Chance Secretaries Limited that it will act for the Borrower as agent for service of process in England in respect of this Agreement. |
3.1.2 | No later than ten (10) Business Days after the date of this Agreement : |
(a) | Receipt by the Agent of an opinion of legal counsel to the Lenders as to Bermudan law, together with the corporate documentation of the Guarantor supporting the opinion, including but without limitation the Memorandum of Association and Bye-laws as filed with the competent authorities and a certificate of a competent officer of the Guarantor containing specimen signatures of the persons authorised to sign the documents on behalf of the Guarantor, to the effect that: |
(i) | the Guarantor has been duly organized and is validly existing as a company under the laws of Bermuda; | ||
(ii) | the Guarantee falls within the scope of the Guarantors corporate purpose as defined by its Memorandum of Association and Bye-laws; | ||
(iii) | the Guarantors representative was at the date of the Guarantee fully empowered to sign the Guarantee; |
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(iv) | either all administrative requirements applicable to the Guarantor (whether in Bermuda or elsewhere) concerning the transfer of funds abroad and acquisitions of euro to meet its obligations under the Guarantee have been complied with, or that there are no such requirements; and | ||
(v) | the Guarantee is the legal, valid and binding obligations of the Guarantor enforceable in accordance with their terms (containing such exceptions as are standard for opinions of this type). |
(b) | Receipt by the Agent of the executed Guarantee and a statement confirming that the Guarantor is in compliance with its obligations under clauses 11.1 and 11.3 of the Guarantee. The statement shall be signed by the chief financial officer of the Group (as such term is defined in clause 11.4 of the Guarantee), be in the form of schedule 1 to the Guarantee and be for the financial quarter ending 30 June 2006. | ||
(c) | Receipt by the Agent of an opinion of legal counsel to the Agent as to English law confirming that the obligations of the Guarantor under the Guarantee are legally valid and binding obligations enforceable by the relevant Finance Parties in the English courts. | ||
(d) | Receipt by the Agent of a confirmation from Clifford Chance Secretaries Limited that it will act for the Guarantor as agent for service of process in England in respect of the Guarantee. |
3.1.3 | No later than three (3) months before the Intended Delivery Date , receipt by the Agent of notification from the Borrower of its preferred Maritime Registry. | |
3.1.4 | On the date falling ninety (90) days before the Intended Delivery Date and on each subsequent date prior to the Drawdown Date on which a statement in the form of schedule 1 to the Guarantee is to be received by the Agent pursuant to clause 9.2.5 of the Guarantee , receipt by the Agent of a statement confirming that the Guarantor is in compliance with its obligations under clauses 11.1 and 11.3 of the Guarantee. The statement shall be signed by the chief financial officer of the Group (as such term is defined in clause 11.4 of the Guarantee), be in the form of schedule 1 to the Guarantee and be for the last financial quarter in respect of which the Guarantor is obliged to provide such a statement pursuant to clause 9.2.5 of the Guarantee. | |
3.1.5 | No later than sixty (60) days before the Intended Delivery Date , receipt by the Agent of notification from the Borrower of the Intended Delivery Date. | |
3.1.6 | No later than ten (10) Business Days before the Intended Delivery Date , receipt by the Agent of insurance documents in form and substance satisfactory to the Lenders confirming that the Insurances have been effected and will be in full force and effect on the Delivery Date. | |
3.1.7 | No later than five (5) Business Days before the Intended Delivery Date , receipt by the Agent of: |
(a) | the Drawdown Notice from the Borrower, signed by a duly authorised signatory of the Borrower, specifying the amount of the Loan to be drawn down; |
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(b) | a Certified Copy of each of the Change Orders and of the power of attorney pursuant to which the authorised signatory of the Borrower signed the Drawdown Notice and a specimen of his signature; and | ||
(c) | a copy of the notice of delivery given by the Builder to the Borrower pursuant to and in accordance with article 7, clause 1.1 of the Building Contract. |
3.1.8 | No later than the Delivery Date : |
(a) | Receipt by the Agent of a legal opinion of counsel to the Lenders as to Bermudan law together with the corporate documentation of the Borrower and the Manager supporting such opinions, including but without limitation, in the case of the Manager, the Memorandum of Association and Bye-laws as filed with the competent authorities and a certificate of a competent officer of the Borrower and the Manager containing specimen signatures of the persons authorised to sign the documents on behalf of the Borrower and the Manager, confirming that: |
(i) | the Lenders may continue to rely on the legal opinion given pursuant to Clause 3.1.1(a)(i); | ||
(ii) | the Mortgage, the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement fall within the scope of the Borrowers corporate purpose as defined by its Memorandum of Association and Bye-laws and are binding on it; | ||
(iii) | the Assignment of Insurances (if applicable) and the acknowledgement of the notice of assignment of the Management Agreement fall within the scope of the Managers corporate purpose as defined by its Memorandum of Association and Bye-laws and are binding on it; and | ||
(iv) | the Borrowers representatives are fully empowered to sign the Protocol of Delivery and Acceptance, the Mortgage, the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement and the Managers representatives are fully empowered to sign the Assignment of Insurances (if applicable) and the acknowledgement of the notice of assignment of the Management Agreement. |
(b) | Receipt by the Agent of evidence of payment to the Builder of: |
(i) | the four (4) pre-delivery instalments of the Contract Price; and | ||
(ii) | any other part of the Contract Price as at the Delivery Date not being financed hereunder. |
(c) | Evidence that: |
(i) | the Vessel is at least provisionally registered in the name of the Borrower in the Maritime Registry; | ||
(ii) | title to the Vessel is held by the Borrower free of all Encumbrances other than any maritime lien in respect of crews wages and trade debts arising out of equipment, consumable and other stores placed |
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On board the Vessel prior to or concurrently with delivery, none of which is overdue; | |||
(iii) | the Mortgage has been duly registered in the Maritime Registry and constitutes a first priority security interest over the Vessel and that all taxes and fees payable to the Maritime Registry in respect of the Vessel have been paid in full. |
(d) | Receipt by the Agent of a Certified Copy of a classification certificate (or interim classification certificate) showing the Vessel to be classed in accordance with Clause 9.4.3. | ||
(e) | Receipt by the Agent of duly executed originals of the Mortgage, the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement together with relevant notices of assignment and the acknowledgement of the notice of assignment of the Management Agreement. | ||
(f) | Receipt by the Agent of all amounts which are due and payable hereunder by the Borrower on or prior to the Delivery Date. | ||
(g) | Receipt by the Agent of a legal opinion of counsel to the Lenders as to the law of the Maritime Registry confirming: |
(i) | the valid registration of the Vessel in the Maritime Registry; and | ||
(ii) | the Mortgage over the Vessel has been validly registered in the Maritime Registry. |
(h) | Receipt by the Agent of an opinion of legal counsel to the Agent as to English law confirming that the obligations of the Borrower under the deed of covenants constituting part of the Mortgage (if applicable), the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement are legally valid and binding obligations enforceable by the relevant Finance Parties in the English courts. | ||
(i) | Receipt by the Agent of a certificate from the Borrower, signed by an authorised representative of the Borrower, attesting that the representations and warranties contained in Clause 9 are true and correct as of the Delivery Date in consideration of the facts and circumstances existing as of the Delivery Date. | ||
(j) | Receipt by the Agent of the documents mentioned in Appendix I. | ||
(k) | Receipt by the Agent of a Certified Copy of the executed Management Agreement. | ||
(l) | Receipt by the Agent of a Certified Copy of the carrier initiative agreement executed pursuant to Clause 10.16, any current certificate of financial responsibility in respect of the Vessel issued under OPA, a valid Safety Management Certificate (or interim Safety Management Certificate) issued to the Vessel in respect of its management by the Manager pursuant to the ISM Code, a valid Document of Compliance (or interim Document of Compliance) issued to the Manager in respect of ships of the same type as the Vessel pursuant to the ISM Code, a valid |
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International Ship Security Certificate issued to the Vessel in accordance with the ISPS Code and a valid IAPPC issued to the Vessel in accordance with Annex VI. | |||
(m) | Receipt by the Agent of a Certified Copy of the power of attorney pursuant to which the authorised signatory(ies) of the Borrower signed the documents referred to in this Clause 3.1.6 and to which the Borrower is a party and a specimen of his or their signature(s). | ||
(n) | Receipt by the Agent of a confirmation from Clifford Chance Secretaries Limited that it will act for each of the relevant Obligors as agent for service of process in England in respect of the deed of covenants constituting part of the Mortgage (if applicable), the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement. | ||
(o) | The Coface Insurance Policy documentation relating to the transactions contemplated by this Agreement has been received by the Agent and remains in full force and effect, the Agent having notified the Borrower of the issue of the Coface Insurance Policy in form and substance satisfactory to the Lenders as soon as practicable after its issue. |
3.2 | Borrowers irrevocable payment instructions | |
The Lenders shall not be obliged to fulfil their obligation to make the Loan available other than by paying the Builder the Total Financed Contract Price (or (as the context may require) the amount thereof drawn down) on behalf of and in the name of the Borrower and by reimbursing the Agent for the related Coface Premium. | ||
The Borrower hereby instructs the Lenders in accordance with this Clause 3.2: |
3.2.1 | to pay to the Builder: |
(a) | the amount in euro remaining due under the Building Contract up to an amount equal to the lesser of five hundred and eighty eight million euro (EUR588,000,000) and eighty per cent. (80%) of the Contract Price of the Vessel prior to any Change Order; and | ||
(b) | subject to Clause 2.2, the amount in euro up to the lesser of fifty eight million eight hundred thousand euro (EUR58,800,000) and eighty per cent. (80%) of the Change Order Amount capped at [**] per cent. [**] of the Financed Contract Price; and |
3.2.2 | to reimburse the Agent, by drawing under the Loan, the related Coface Premium. |
The payment instruction contained in this Clause 3.2 is irrevocable. | ||
Subject to Clause 3.1, payment will be made to the Builder by a single advance in euro on the Delivery Date of the Vessel during usual banking hours in the French Republic to the Builders account as specified by the Builder in accordance with the Building Contract after receipt and verification by the Agent of the documents provided under Appendix I. | ||
Verification of the documents provided under Appendix I shall be limited to checking their apparent compliance as defined in the Uniform Customs and Practices for Documentary Credits ICC Publication 500 (UCP 500 latest revision). |
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4. | REPAYMENT OF LOAN AND PAYMENT OF INTEREST |
5. | CLAIMS OR DEFENCES MAY NOT BE OPPOSED TO THE LENDERS |
6. | COFACE PREMIUM |
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7. | FEES |
7.1.1 | For the Mandated Lead Arrangers, an arrangement fee equal to [**] [Confidential Treatment] of the Maximum Loan Amount payable: |
(a) | as to [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of such fee amount within ten (10) Business Days after the date of this Agreement; and | ||
(b) | unless this Agreement is terminated pursuant to Clause 29, as to [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of such fee amount on the first anniversary of the date of this Agreement. |
7.1.2 | For the Lenders, a commitment fee for the period from the date of this Agreement to the Delivery Date of the Vessel, or the date of receipt by the Agent of the written termination notice sent by the Borrower as described in Clause 29, whichever is the earliest, computed at the rate of: |
(a) | [**] [Confidential Treatment] per cent. [**] [Confidential Treatment]%) per annum for the first two (2) years after the date of this Agreement; and | ||
(b) | [**] [Confidential Treatment] two per cent. [**] [Confidential Treatment] %) per annum thereafter. |
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7.1.3 | For the Agent, an annual agency fee of [**] [Confidential Treatment] shall be paid within ten (10) Business Days of the date of this Agreement and, unless this Agreement is terminated pursuant to Clause 29, on or before each anniversary date thereof until total repayment of the Loan. |
8. | TAXES, INCREASED COSTS, COSTS AND RELATED CHARGES | |
8.1 | All Taxes legally payable in France as a consequence of the signature or performance of this Agreement shall be paid by the Lenders. | |
8.2 | All Taxes legally payable outside France (other than taxes payable by each of the Lenders on its overall net income) as a consequence of the signature or performance of this Agreement shall be paid by the Borrower. In consequence, all payments of principal and interest, interest on late payments, compensation, costs, fees and related charges, due in connection with this Agreement shall be made without any deduction or withholding in respect of Taxes. The Borrower therefore hereby agrees expressly that if for any reason full payment of the above amounts is not made, it will immediately pay the Lenders the sums necessary to compensate exactly the effect of the deductions or withholdings made in respect of Taxes. If the Borrower fails to perform this obligation, the Lenders shall be entitled, in accordance with Clause 13, either not to make available the Loan or, as the case may require, to require immediate repayment of the Loan. |
8.3 | If after the date of this Agreement by reason of: |
8.3.1 | any change in law or in its interpretation or administration; and/or | ||
8.3.2 | compliance with any request from or requirement of any central bank or other fiscal, monetary or other authority including but without limitation the Basle Committee on Banking Regulations and Supervisory Practices whether or not having the force of law: |
(a) | any of the Lenders incurs a cost as a result of its performing its obligations under this Agreement and/or its advancing its Commitment hereunder; or |
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(b) | there is any increase in the cost to any of the Lenders of funding or maintaining all or any of the advances comprised in a class of advances formed by or including its Commitment advanced or to be advanced by it hereunder; or | ||
(c) | any of the Lenders incurs a cost as a result of its having entered into and/or its assuming or maintaining its commitment under this Agreement; or | ||
(d) | any of the Lenders becomes liable to make any payment on account of Tax or otherwise (other than Tax on its overall net income) on or calculated by reference to the amount of its Commitment advanced or to be advanced hereunder and/or any sum received or receivable by it hereunder; or | ||
(e) | any of the Lenders suffers any decrease in its rate of return as a result of any changes in the requirements relating to capital ratios, monetary control ratios, the payment of special deposits, liquidity costs or other similar requirements affecting that Lender, |
8.4 | The Borrower undertakes to pay to the Agent, upon demand, all reasonable costs and expenses, duties and fees, including but without limitation agreed legal costs, out of pocket expenses and travel costs, incurred by the Mandated Lead Arrangers and the Original Lenders in connection with the negotiation, preparation and execution of all agreements, guarantees, security agreements and related documents entered into, or to be entered into, for the purpose of the transaction contemplated hereby as well as all costs and expenses, duties and fees incurred by the Lenders in connection with the registration, filing, enforcement or discharge of the said guarantees or security agreements, including without limitation the fees and expenses of legal advisers and insurance experts, the cost of registration and discharge of security interests and the related travel and out of pocket expenses; the Borrower further undertakes to pay to the Agent all costs, expenses, duties and fees incurred by the Lenders in connection with any variation of this Agreement and the related documents, guarantees and security agreements, any supplements thereto and waiver given in relation thereto, in connection with the enforcement or preservation of any rights under this Agreement and/or the related guarantees and security agreements, including in each case the fees and expenses of legal advisers, and in connection with the |
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consultations or proceedings made necessary by the acts of, or failure to act on the part of, the Borrower. |
8.5 | The Borrower undertakes to pay to the Agent, upon demand, any reasonable costs necessarily incurred by the Lenders in funding the Loan in the event that the Delivery Date is later than the Intended Delivery Date unless the Borrower has given the Agent at least three (3) Business Days notification of such delay in the Delivery Date. |
9. | REPRESENTATIONS AND WARRANTIES | |
9.1 | Duration |
9.1.1 | The representations and warranties in Clause 9.2 are made on the date of this Agreement and shall be deemed to be repeated, with reference mutatis mutandis to the facts and circumstances subsisting, as if made on each day until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents. | ||
9.1.2 | The representations and warranties in Clause 9.3 are made on the date of this Agreement and shall be deemed to be repeated, with reference mutatis mutandis to the facts and circumstances subsisting, as if made on the date falling sixty (60) days before the Intended Delivery Date and thereafter on each day until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents. | ||
9.1.3 | The representations and warranties in Clause 9.4 are made on the Delivery Date and shall be deemed to be repeated, with reference mutatis mutandis to the facts and circumstances subsisting, as if made thereafter on each day until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents. |
9.2 | Continuing representations and warranties |
9.2.1 | Status |
9.2.2 | Powers and authority |
9.2.3 | Legal validity |
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9.2.4 | Non-conflict with laws |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | the constitutional documents of any Obligor; or | ||
(c) | any agreement or document to which any Obligor is a party or which is binding upon such Obligor or any of its assets, |
9.2.5 | Consents |
(a) | the filing of those Security Documents to be filed with the Registrar of Companies in Bermuda; and | ||
(b) | the registration of the Mortgage through the relevant authority of the Maritime Registry, |
9.2.6 | Accuracy of information |
9.2.7 | Full disclosure |
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9.2.8 | Pari passu or priority status |
9.2.9 | Solvency |
9.2.10 | Winding-up, etc. |
9.2.11 | Accounts |
9.2.12 | No immunity |
9.2.13 | Ownership of shares |
9.2.14 | Completeness of documents |
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9.2.15 | Money laundering |
9.3 | Semi-continuing representations and warranties |
9.3.1 | No default |
9.3.2 | No encumbrances |
9.3.3 | Litigation |
9.3.4 | Tax liabilities |
9.3.5 | Ownership of assets |
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9.3.6 | Place of business |
9.3.7 | Environment |
(a) | is in compliance with all applicable federal, state, local, foreign and international laws, regulations, conventions and agreements relating to pollution prevention or protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, navigable waters, water of the contiguous zone, ocean waters and international waters), including without limitation, laws, regulations, conventions and agreements relating to: |
(i) | emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous materials, oil, hazard substances, petroleum and petroleum products and by-products ( Materials of Environmental Concern ); or | ||
(ii) | the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern (such laws, regulations, conventions and agreements the Environmental Laws ); |
(b) | has all permits, licences, approvals, rulings, variances, exemptions, clearances, consents or other authorisations required under applicable Environmental Laws ( Environmental Approvals ) and is in compliance with all Environmental Approvals required to operate its business as presently conducted or as reasonably anticipated to be conducted; | ||
(c) | has not received any notice, claim, action, cause of action, investigation or demand by any other person, alleging potential liability for, or a requirement to incur, investigatory costs, clean-up costs, response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural resources damages, property damages, personal injuries, attorneys fees and expenses or fines or penalties, in each case arising out of, based on or resulting from: |
(i) | the presence or release or threat of release into the environment of any Material of Environmental Concern at any location, whether or not owned by such person; or | ||
(ii) | circumstances forming the basis of any violation, or alleged violation, of any Environmental Law or Environmental Approval ( Environmental Claim ); and |
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9.4 | Representations on the Delivery Date |
9.4.1 | in its absolute and unencumbered ownership save as contemplated by the Security Documents; | ||
9.4.2 | at least provisionally registered in its name under the laws and flag of the Maritime Registry; | ||
9.4.3 | classed with the highest classification available for a vessel of its type free of all recommendations and qualifications with Det Norske Veritas; | ||
9.4.4 | operationally seaworthy and in compliance with all relevant provisions, regulations and requirements (statutory or otherwise) applicable to ships registered under the laws and flag of the Maritime Registry; | ||
9.4.5 | in compliance with the ISM Code, the ISPS Code and Annex VI; | ||
9.4.6 | insured in accordance with the provisions of Clause 10.20 and in compliance with the requirements therein in respect of such insurances; and | ||
9.4.7 | managed by the Manager on and subject to the terms set out in the Management Agreement. |
10. | UNDERTAKINGS | |
10.1 | Duration |
10.1.1 | The undertakings in Clauses 10.2, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.13, 10.15, 10.17, 10.23, 10.24 and 10.25 shall remain in full force and effect until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents. | ||
10.1.2 | The undertakings in Clauses 10.12, 10.14, 10.16, 10.18, 10.19, 10.20, 10.21 and 10.22 shall apply with effect from, and shall remain in full force and effect after, the date falling sixty (60) days before the Intended Delivery Date until the Borrower has no remaining obligations, actual or contingent, under or pursuant to this Agreement or any of the other Security Documents. |
10.2 | Information | |
The Borrower will provide to the Agent for the benefit of the Lenders (or will procure the provision of): |
10.2.1 | as soon as practicable (and in any event within one hundred and twenty (120) days after the close of each of its financial years) a Certified Copy of its unaudited accounts for that year and a Certified Copy of the audited accounts of |
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the Guarantor and its consolidated Subsidiaries for that year (commencing with
accounts made up to 31 December in the year in which the Drawdown Date occurs in
the case of the Borrower and with accounts made up to 31 December 2005 in the case
of the consolidated accounts of the Guarantor);
|
|||
10.2.2 | as soon as practicable (and in any event within sixty (60) days of the end of each quarter of each financial year) a copy of the unaudited consolidated accounts of the Guarantor for that quarter (commencing with unaudited accounts made up to 30 June 2006); | ||
10.2.3 | promptly, such further information in its possession or control regarding its financial condition and operations and those of any company in the Group as the Agent may request for the benefit of the Finance Parties; and | ||
10.2.4 | details of any material litigation, arbitration or administrative proceedings which affect any Obligor as soon as the same are instituted and served, or, to the knowledge of the Borrower, threatened (and for this purpose proceedings shall be deemed to be material if they involve a claim in an amount exceeding [**] [Confidential Treatment] Dollars or the equivalent in another currency). | ||
All accounts required under this Clause 10.2 shall be prepared in accordance with GAAP and shall fairly represent the financial condition of the relevant company. In this Clause 10.2 and in Clause 9.3.5 Group shall have the meaning ascribed to it in clause 11.4 of the Guarantee. |
10.3 | Notification of default | |
The Borrower will notify the Agent of any Event of Default forthwith upon becoming aware of the occurrence thereof. Upon the Agents request from time to time the Borrower will issue a certificate stating whether any Obligor is aware of the occurrence of any Event of Default. |
10.4 | Consents and registrations | |
The Borrower will procure that (and will promptly furnish Certified Copies to the Agent on the request of the Agent of) all such authorisations, approvals, consents, licences and exemptions as may be required under any applicable law or regulation to enable it or any Obligor to perform its obligations under, and ensure the validity or enforceability of, each of the Transaction Documents are obtained and promptly renewed from time to time and will procure that the terms of the same are complied with at all times. Insofar as such filings or registrations have not been completed on or before the Drawdown Date the Borrower will procure the filing or registration within applicable time limits of each Security Document which requires filing or registration together with all ancillary documents required to preserve the priority and enforceability of the Security Documents. |
10.5 | Negative pledge | |
The Borrower will not create or permit to subsist any Encumbrance on the whole or any part of its present or future assets, except for the following: |
10.5.1 | Encumbrances created with the prior consent of the Lenders; or | ||
10.5.2 | Permitted Liens. |
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10.6 | Disposals | |
Except with the prior consent of all the Lenders, the Borrower shall not, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of any of its assets except in the case of items being replaced or renewed provided that the net impact is not a reduction in the value of the Vessel. |
10.7 | Change of business | |
Except with the prior consent of the Agent, the Borrower shall not make or threaten to make any substantial change in its business as presently conducted, namely that of a single ship owning company for the Vessel, or carry on any other business which is substantial in relation to its business as presently conducted so as to affect, in the opinion of the Agent, the Borrowers ability to perform its obligations hereunder and the Borrower will procure that the other Obligors continue, throughout the Security Period, to perform their current business activities. |
10.8 | Mergers | |
Except with the prior consent of the Lenders, the Borrower will not enter into any amalgamation, restructure, substantial reorganisation, merger, de-merger or consolidation or anything analogous to the foregoing nor will it acquire any equity, share capital or obligations of any corporation or other entity. |
10.9 | Maintenance of status and franchises | |
The Borrower will do all such things as are necessary to maintain its corporate existence in good standing and will ensure that it has the right and is duly qualified to conduct its business as it is conducted in all applicable jurisdictions and will obtain and maintain all franchises and rights necessary for the conduct of its business. |
10.10 | Financial records | |
The Borrower will keep proper books of record and account, in which proper and correct entries shall be made of all financial transactions and the assets, liabilities and business of the Borrower in accordance with GAAP. |
10.11 | Financial indebtedness and subordination of indebtedness |
10.11.1 | Otherwise than in the ordinary course of business as owner of the Vessel, except as contemplated by this Agreement and except any loan, advance or credit extended by the Guarantor or any member of the Group which is a wholly owned Subsidiary of the Guarantor, the Borrower will not create, incur, assume or allow to exist any financial indebtedness, enter into any finance lease or undertake any material capital commitment (including but not limited to the purchase of any capital asset). | ||
10.11.2 | The Borrower shall procure that any and all indebtedness (and in particular with any other Obligor) is at all times fully subordinated to the Security Documents and the obligations of the Borrower hereunder. Upon the occurrence of an Event of Default, the Borrower shall not make any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing such indebtedness. In this Clause fully subordinated shall mean that any claim of the lender against the Borrower in relation to such indebtedness shall rank after and be in all respects subordinate to all of the |
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rights and claims of the Finance Parties under this Agreement and the other Security Documents and that the lender shall not take any steps to enforce its rights to recover any monies owing to it by the Borrower and in particular but without limitation the lender will not institute any legal or quasi-legal proceedings under any jurisdiction at any time against the Vessel, her Earnings or Insurances or the Borrower and it will not compete with the Finance Parties or any of them in a liquidation or other winding-up or bankruptcy of the Borrower or in any proceedings in connection with the Vessel, her Earnings or Insurances. |
10.12 | Pooling of earnings and charters | |
The Borrower will not enter into in respect of the Vessel, nor permit to exist: |
10.12.6 | any such bareboat charterer shall enter into such deeds (including but not limited to a subordination and assignment deed), agreements and indemnities as the Agent shall in its sole discretion require prior to entering into the bareboat charter with the Borrower; and | ||
10.12.7 | the Borrower shall assign the benefit of any such bareboat charter and its interest in the Insurances to the Finance Parties by way of further security for the Borrowers obligations under the Security Documents. |
10.13 | Loans and guarantees by the Borrower | |
Otherwise than in the ordinary course of business as owner of the Vessel, the Borrower will not make any loan or advance or extend credit to any person, firm or corporation or issue or enter into any guarantee or indemnity or otherwise become directly or contingently liable for the obligations of any other person, firm or corporation. |
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10.14 | Management and employment | |
Except with the prior consent of the Agent, the Borrower will not: |
10.14.1 | permit any person other than the Manager to be the manager of, including providing crewing services to, the Vessel; | ||
10.14.2 | permit any amendment to be made to the terms of the Management Agreement unless the amendment is advised by the Borrowers tax counsel or is deemed necessary by the parties thereto to reflect the prevailing circumstances but provided that the amendment does not imperil the security to be provided pursuant to the Security Documents or adversely affect the ability of any Obligor to perform its obligations under the Transaction Documents; or | ||
10.14.3 | permit the Vessel to be employed other than within the NCL or NCL America brand (as applicable). |
10.15 | Acquisition of shares | |
The Borrower will not acquire any equity, share capital, assets or obligations of any corporation or other entity or permit its shares to be held other than directly or indirectly by the Guarantor. |
10.16 | Trading with the United States of America | |
The Borrower shall in respect of the Vessel take all reasonable precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America (as the same may be amended and/or re-enacted from time to time hereafter) or any similar legislation applicable to the Vessel in any other jurisdiction in which the Vessel shall trade (a Relevant Jurisdiction ) where the Vessel trades in the territorial waters of the United States of America or a Relevant Jurisdiction and, for this purpose, the Borrower shall, inter alia, enter into a Carrier Initiative Agreement with the United States Customs Service (if such is possible) and procure that the same (or a similar agreement in a Relevant Jurisdiction) is maintained in full force and effect and its obligations thereunder performed by it in respect of the Vessel throughout any period of United States of America (including coastal waters over which it claims jurisdiction) or Relevant Jurisdiction related trading. |
10.17 | Further assurance | |
The Borrower will, from time to time on being required to do so by the Agent, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the Agent as the Agent may reasonably consider necessary for giving full effect to any of the Transaction Documents or the Coface Insurance Policy or securing to the Finance Parties the full benefit of the rights, powers and remedies conferred upon the Finance Parties or any of them in any such Transaction Document. |
10.18 | Valuation of the Vessel |
10.18.1 | The Borrower will from time to time (but at intervals no more frequently than annually at the Borrowers expense unless an Event of Default has occurred and remains unremedied) within thirty (30) days of receiving any request to that effect from the Agent, procure that the Vessel is valued by an independent reputable shipbroker or shipvaluer experienced in valuing cruise ships appointed by the Borrower and approved by the Agent (which approval shall |
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not be unreasonably withheld or delayed and such valuation to be made with or
without taking into account the benefit or otherwise of any fixed employment
relating to the Vessel as the Agent may require).
|
|||
10.18.2 | If the Borrower does not accept the valuation obtained pursuant to Clause 10.18.1 (the First Valuation ) it may (at its own expense) within five (5) Business Days of receipt of the First Valuation obtain a second valuation (the Second Valuation ) from another independent reputable shipbroker or shipvaluer experienced in valuing cruise ships appointed by the Borrower and approved by the Agent which approval shall not be unreasonably withheld or delayed. | ||
10.18.3 | If the Second Valuation exceeds the First Valuation by a margin of no less than ten per cent. (10%) of the First Valuation the Borrower may at its expense forthwith upon receipt of the Second Valuation request the shipbrokers and/or shipvaluers appointed pursuant to Clauses 10.18.1 and 10.18.2 to obtain a third valuation (the Third Valuation ) from a further independent reputable shipbroker or shipvaluer experienced in valuing cruise ships approved by the Agent such approval not to be unreasonably withheld or delayed. Subject to the Third Valuation being made available within five (5) Business Days of the date of the Second Valuation, the valuation of the Vessel will be determined on the basis of the average of the three valuations so obtained. If the Third Valuation is not made available within the aforementioned time limit, the Vessel shall be valued on the basis of the average of the First Valuation and the Second Valuation. | ||
10.18.4 | The Borrower shall procure that forthwith upon the issuance of any valuation obtained pursuant to this Clause 10.18 a copy thereof is sent directly to the Agent for review. |
10.19 | Earnings | |
The Borrower will procure that the Earnings (if any) are paid in full without set off and free and clear of and without deduction for any taxes levies duties imposts charges fees restrictions or conditions of any nature whatsoever. |
10.20 | Insurances | |
The Borrower covenants with the Finance Parties and undertakes: |
10.20.1 | from the Delivery Date until the end of the Security Period to insure the Vessel in its name and keep the Vessel insured on an agreed value basis for an amount in the currency in which the Loan is denominated approved by the Agent but not being less than the greater of: |
(a) | one hundred and twenty five per cent. (125%) of the amount of the Loan; and | ||
(b) | the full market and commercial value of the Vessel determined in accordance with Clause 10.18 from time to time |
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(i) | fire and marine risks including but without limitation hull and machinery and all other risks customarily and usually covered by first-class and prudent shipowners in the London insurance markets under English marine policies or Agent-approved policies containing the ordinary conditions applicable to similar vessels; | ||
(ii) | war risks and war risks (protection and indemnity) up to the insured amount; | ||
(iii) | excess risks that is to say the proportion of claims for general average and salvage charges and under the running down clause not recoverable in consequence of the value at which the Vessel is assessed for the purpose of such claims exceeding the insured value; | ||
(iv) | protection and indemnity risks with full standard coverage as offered by first-class protection and indemnity associations and up to the highest limit of liability available (for oil pollution risk the highest limit currently available is one billion Dollars (USD1,000,000,000) and this to be increased if reasonably requested by the Agent and the increase is possible in accordance with the standard protection and indemnity cover for vessels of its type and is compatible with prudent insurance practice for first class cruise shipowners or operators in waters where the Vessel trades from time to time from the Delivery Date until the end of the Security Period); | ||
(v) | when and while the Vessel is laid-up, in lieu of hull insurance, normal port risks; and | ||
(vi) | such other risks as the Agent may from time to time reasonably require; |
10.20.2 | to agree that the Agent shall take out mortgagee interest insurance on such conditions as the Agent may reasonably require and mortgagee interest insurance for pollution risks as from time to time agreed each for an amount in the currency in which the Loan is denominated of one hundred and ten per cent. (110%) of the amount of the Loan, the Borrower having no interest or entitlement in respect of such policies; the Borrower shall upon demand of the Agent reimburse the Agent for the costs of effecting and/or maintaining any such insurance(s) and the Agent hereby undertakes to use its reasonable endeavours to match the premium level that the Borrower would have paid if the Borrower itself had arranged such cover on such conditions (as demonstrated to the reasonable satisfaction of the Agent); | |
10.20.3 | if the Vessel shall trade in the United States of America and/or the Exclusive Economic Zone of the United States of America (the EEZ ) as such term is defined in the US Oil Pollution Act 1990 ( OPA ), to comply strictly with the requirements of OPA and any similar legislation which may from time to time be enacted in any jurisdiction in which the Vessel presently trades or may or will trade at any time during the existence of this Agreement and in particular |
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before such trade is commenced and during the entire period during which such trade is carried on: |
(a) | to pay any additional premiums required to maintain protection and indemnity cover for oil pollution up to the limit available to it for the Vessel in the market; | ||
(b) | to make all such quarterly or other voyage declarations as may from time to time be required by the Vessels protection and indemnity association and to comply with all obligations in order to maintain such cover, and promptly to deliver to the Agent copies of such declarations; | ||
(c) | to submit the Vessel to such additional periodic, classification, structural or other surveys which may be required by the Vessels protection and indemnity insurers to maintain cover for such trade and promptly to deliver to the Agent copies of reports made in respect of such surveys; | ||
(d) | to implement any recommendations contained in the reports issued following the surveys referred to in Clause 10.20.4(c) within the time limit specified therein and to provide evidence satisfactory to the Agent that the protection and indemnity insurers are satisfied that this has been done; | ||
(e) | in particular strictly to comply with the requirements of any applicable law, convention, regulation, proclamation or order with regard to financial responsibility for liabilities imposed on the Borrower or the Vessel with respect to pollution by any state or nation or political subdivision thereof, including but not limited to OPA, and to provide the Agent on demand with such information or evidence as it may reasonably require of such compliance; | ||
(f) | to procure that the protection and indemnity insurances do not contain a clause excluding the Vessel from trading in waters of the United States of America and the EEZ or any other provision analogous thereto and to provide the Agent with evidence that this is so; and | ||
(g) | strictly to comply with any operational or structural regulations issued from time to time by any relevant authorities under OPA so that at all times the Vessel falls within the provisions which limit strict liability under OPA for oil pollution; |
10.20.4 | to give notice forthwith of any assignment of its interest in the Insurances to the relevant brokers, insurance companies, underwriters and/or associations in the form approved by the Agent; | ||
10.20.5 | to execute and deliver all such documents and do all such things as may be necessary to confer upon the Finance Parties legal title to the Insurances in respect of the Vessel and to procure that the interest of the Finance Parties is at all times filed with all slips, cover notes, policies and certificates of entry and to procure (a) that a loss payable clause in the form approved by the Agent shall be filed with all the hull, machinery and equipment and war risks policies in respect of the Vessel and (b) that a loss payable clause in the form approved by the Agent shall be endorsed upon the protection and indemnity certificates of entry in respect of the Vessel; |
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10.20.6 |
to procure that each of the relevant brokers and associations furnishes the
Agent with a letter of undertaking in such form as may be required by the Agent and
waives any lien for premiums or calls except in relation to premiums or calls solely
attributable to the Vessel;
|
||
10.20.7 | punctually to pay all premiums, calls, contributions or other sums payable in respect of the Insurances on the Vessel and to produce all relevant receipts when so required by the Agent; | ||
10.20.8 | to renew each of the Insurances on the Vessel at least five (5) days before the expiry thereof and to give immediate notice to the Agent of such renewal and to procure that the relevant brokers or associations shall promptly confirm in writing to the Agent that such renewal is effected it being understood by the Borrower that any failure to renew the Insurances on the Vessel at least five (5) days before the expiry thereof or to give or procure the relevant notices of such renewal shall constitute an Event of Default; | ||
10.20.9 | to arrange for the execution of such guarantees as may from time to time be required by any protection and indemnity and/or war risks association; | ||
10.20.10 | to furnish the Agent from time to time on request with full information about all Insurances maintained on the Vessel and the names of the offices, companies, underwriters, associations or clubs with which such Insurances are placed; | ||
10.20.11 | not to agree to any variation in the terms of any of the Insurances on the Vessel without the prior approval of the Agent nor to do any act or voluntarily suffer or permit any act to be done whereby any Insurances shall or may be rendered invalid, void, voidable, suspended, defeated or unenforceable and not to suffer or permit the Vessel to engage in any voyage nor to carry any cargo not permitted under any of the Insurances without first obtaining the consent of the insurers or reinsurers concerned and complying with such requirements as to payment of extra premiums or otherwise as the insurers or reinsurers may impose; | ||
10.20.12 | not without the prior written consent of the Agent to settle, compromise or abandon any claim in respect of any of the Insurances on the Vessel other than a claim of less than ten million Dollars (USD10,000,000) or the equivalent in any other currency and not being a claim arising out of a Total Loss; | ||
10.20.13 | promptly to furnish the Agent with full information regarding any casualties or other accidents or damage to the Vessel involving an amount in excess of [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]; | ||
10.20.14 | to apply or ensure the appliance of all such sums receivable in respect of the Insurances on the Vessel for the purpose of making good the loss and fully repairing all damage in respect whereof the insurance monies shall have been received; | ||
10.20.15 | that in the event of it making default in insuring and keeping insured the Vessel as hereinbefore provided then the Agent may (but shall not be bound to) insure the Vessel or enter the Vessel in such manner and to such extent as the Agent in its discretion thinks fit and in such case all the cost of effecting and maintaining such insurance together with interest thereon at the Interest Rate shall be paid on demand by the Borrower to the Agent; and |
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10.20.16 | to agree that the Agent shall be entitled from time to time (but at intervals no more frequently than annually at the Borrowers expense up to an amount of ten thousand euro (EUR10,000) annually, except in the case that the Delivery Date and any renewal or amendment of the Insurances to be assigned to the Finance Parties pursuant to the Assignment of Insurances fall within one (1) year of each other or such Insurances are amended within one (1) year of the Delivery Date or their renewal (as the case may be)) to instruct independent reputable insurance advisers for the purpose of obtaining any advice or information regarding any matter concerning the Insurances which the Agent shall at its sole discretion deem necessary, it being hereby specifically agreed that it shall reimburse the Agent on demand for all reasonable costs and expenses incurred by the Agent in connection with the instruction of such advisers as aforesaid. |
10.21 | Operation and maintenance of the Vessel | |
From the Delivery Date until the end of the Security Period at its own expense the Borrower will: |
10.21.1 | keep the Vessel in a good and efficient state of repair so as to maintain it to the highest classification notation available for the Vessel of its age and type free of all recommendations and qualifications with Det Norske Veritas. On the Delivery Date and annually thereafter, it will furnish to the Agent a statement by such classification society that such classification notation is maintained. It will comply with all recommendations, regulations and requirements (statutory or otherwise) from time to time applicable to the Vessel and shall have on board as and when required thereby valid certificates showing compliance therewith and shall procure that all repairs to or replacements of any damaged, worn or lost parts or equipment are carried out (both as regards workmanship and quality of materials) so as not to diminish the value or class of the Vessel. It will not make any substantial modifications or alterations to the Vessel or any part thereof which would reduce the market and commercial value of the Vessel determined in accordance with Clause 10.18 without the prior consent of the Agent; | ||
10.21.2 | submit the Vessel to continuous survey in respect of its machinery and hull and such other surveys as may be required for classification purposes and, if so required by the Agent, supply to the Agent copies in English of the survey reports; | ||
10.21.3 | permit surveyors or agents appointed by the Agent to board the Vessel at all reasonable times to inspect its condition or satisfy themselves as to repairs proposed or already carried out and afford all proper facilities for such inspections; | ||
10.21.4 | comply, or procure that the Manager will comply, with the ISM Code (as the same may be amended from time to time) or any replacement of the ISM Code (as the same may be amended from time to time) and in particular, without prejudice to the generality of the foregoing, as and when required to do so by the ISM Code and at all times thereafter: |
(a) | hold, or procure that the Manager holds, a valid Document of Compliance duly issued to the Borrower or the Manager (as the case may be) pursuant to the ISM Code and a valid Safety Management Certificate duly issued to the Vessel pursuant to the ISM Code; |
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(b) | provide the Agent with copies of any such Document of Compliance and Safety Management Certificate as soon as the same are issued; and | ||
(c) | keep, or procure that there is kept, on board the Vessel a copy of any such Document of Compliance and the original of any such Safety Management Certificate; |
10.21.5 | comply, or procure that the Manager will comply, with the ISPS Code (as the same may be amended from time to time) or any replacement of the ISPS Code (as the same may be amended from time to time) and in particular, without prejudice to the generality of the foregoing, as and when required to do so by the ISPS Code and at all times thereafter: |
(a) | keep, or procure that there is kept, on board the Vessel the original of the International Ship Security Certificate; and | ||
(b) | keep, or procure that there is kept, on board the Vessel a copy of the ship security plan prepared pursuant to the ISPS Code; |
10.21.6 | comply with Annex VI (as the same may be amended from time to time) or any replacement of Annex VI (as the same may be amended from time to time) and in particular, without limitation, to: |
(a) | procure that the Vessels master and crew are familiar with, and that the Vessel complies with, Annex VI; and | ||
(b) | maintain for the Vessel throughout the Security Period a valid and current IAPPC and provide a copy to the Agent; and | ||
(c) | notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the IAPPC; |
10.21.7 | not employ the Vessel or permit its employment in any trade or business which is forbidden by any applicable law or is otherwise illicit or in carrying illicit or prohibited goods or in any manner whatsoever which may render it liable to condemnation in a prize court or to destruction, seizure or confiscation or that may expose the Vessel to penalties. In the event of hostilities in any part of the world (whether war be declared or not) it will not employ the Vessel or permit its employment in carrying any contraband goods; | ||
10.21.8 | promptly provide the Agent with (a) all information which the Agent may reasonably require regarding the Vessel, its employment, earnings, position and engagements (b) particulars of all towages and salvages and (c) copies of all charters and other contracts for its employment and otherwise concerning it; | ||
10.21.9 | give notice to the Agent promptly and in reasonable detail upon the Borrower or any other Obligor becoming aware of: |
(a) | accidents to the Vessel involving repairs the cost of which will or is likely to exceed [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]; | ||
(b) | the Vessel becoming or being likely to become a Total Loss; | ||
(c) | any recommendation or requirement made by any insurer or classification society or by any competent authority which is not complied with, or cannot be complied with, within any time limit relating thereto and that |
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(d) | any writ or claim served against or any arrest of the Vessel or the exercise of any lien or purported lien on the Vessel, her Earnings or Insurances; | ||
(e) | the Vessel ceasing to be registered under the flag of the Maritime Registry or anything which is done or not done whereby such registration may be imperilled; | ||
(f) | it becoming impossible or unlawful for it to fulfil any of its obligations under the Security Documents; and | ||
(g) | anything done or permitted or not done in respect of the Vessel by any person which is likely to imperil the security created by the Security Documents; |
10.21.10 | promptly pay and discharge all debts, damages and liabilities, taxes, assessments, charges, fines, penalties, tolls, dues and other outgoings in respect of the Vessel and keep proper books of account in respect thereof provided always that the Borrower shall not be obliged to compromise any debts, damages and liabilities as aforesaid which are being contested in good faith subject always that full details of any such contested debt, damage or liability which, either individually or in aggregate exceeds [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] shall forthwith be provided to the Agent. As and when the Agent may so require the Borrower will make such books available for inspection on behalf of the Agent and provide evidence satisfactory to the Agent that the wages and allotments and the insurance and pension contributions of the master and crew are being regularly paid, that all deductions of crews wages in respect of any tax liability are being properly accounted for and that the master has no claim for disbursements other than those incurred in the ordinary course of trading on the voyage then in progress or completed prior to such inspection; | ||
10.21.11 | maintain the type of the Vessel as at the Delivery Date and not put the Vessel into the possession of any person without the prior consent of the Agent for the purpose of work being done on it in an amount exceeding or likely to exceed [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] unless such person shall first have given to the Agent a written undertaking addressed to the Agent in terms satisfactory to the Agent agreeing not to exercise a lien on the Vessel or her Earnings for the cost of such work or for any other reason; | ||
10.21.12 | promptly pay and discharge all liabilities which have given rise, or may give rise, to liens or claims enforceable against the Vessel under the laws of all countries to whose jurisdiction the Vessel may from time to time be subject and in particular the Borrower hereby agrees to indemnify and hold the Finance Parties, their successors, assigns, directors, officers, shareholders, employees and agents harmless from and against any and all claims, losses, liabilities, damages, expenses (including attorneys, fees and expenses and consultant fees) and injuries of any kind whatsoever asserted against the Finance Parties, with respect to or as a result of the presence, escape, seepage, spillage, release, leaking, discharge or migration from the Vessel or other properties owned or operated by the Borrower of any hazardous substance, including without limitation, any claims asserted or arising under any applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations |
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promulgated thereunder of all governmental agencies, regardless of whether or not caused by or within the control of the Borrower subject to the following: |
(a) | it is the parties understanding that the Finance Parties do not now, have never and do not intend in the future to exercise any operational control or maintenance over the Vessel or any other properties and operations owned or operated by the Borrower, nor in the past, presently, or intend in the future to, maintain an ownership interest in the Vessel or any other properties owned or operated by the Borrower except as may arise upon enforcement of the Lenders rights under the Mortgage; | ||
(b) | the indemnity and hold harmless contained in this Clause 10.21.12 shall not extend to the Finance Parties in their capacity as equity investors in the Borrower or as an owner of any property or interest as to which the Borrower is also owner but only to their capacity as lenders, holders of security interests or beneficiaries of security interests; and | ||
(c) | unless and until an Event of Default shall have occurred and without prejudice to the right of each Lender to be indemnified pursuant to this Clause 10.21.12: |
(i) | each Lender will, if it is reasonably practicable to do so, notify the Borrower upon receiving a claim in respect of which the relevant Lender is or may become entitled to an indemnity under this Clause 10.21.12; | ||
(ii) | subject to the prior written approval of the relevant Lender which the Lender shall have the right to withhold, the Borrower will be entitled to take, in the name of the relevant Lender, such action as the Borrower may see fit to avoid, dispute, resist, appeal, compromise or defend any such claims, losses, liabilities, damages, expenses and injuries as are referred to above in this Clause 10.21.12 or to recover the same from any third party, subject to the Borrower first ensuring that the relevant Lender is secured to its reasonable satisfaction against all expenses thereby incurred or to be incurred; and | ||
(iii) | the relevant Lender will, to the extent that it is reasonably practicable to do so, seek the approval of the Borrower (such approval not to be unreasonably withheld or delayed) before making any admission of liability, agreement or compromise with a third party, or any payment to a third party, in respect of such claims, losses, liabilities, damages, expenses and injuries as are referred to above in this Clause 10.21.12 and, to the extent that the Borrower is entitled to take action in accordance with sub-clause (ii) above and subject to the Borrower first ensuring that the relevant Lender is secured to its reasonable satisfaction against all expenses thereby incurred or to be incurred, the relevant Lender will provide such information, assistance and other co-operation as the Borrower may reasonably request in connection with such action, |
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10.21.13 | give to the Agent at such times as it may from time to time reasonably require a certificate, duly signed on its behalf, as to the total amount of any debts, damages and liabilities relating to the Vessel and details of such of those debts, damages and liabilities as are over a certain amount to be specified by the Agent at the relevant time and, if so required by the Agent, forthwith discharge such of those debts, damages and liabilities as the Agent shall require other than those being contested in good faith; and | ||
10.21.14 | maintain the registration of the Vessel under and fly the flag of the Maritime Registry and not do or permit anything to be done whereby such registration may be forfeited or imperilled. |
10.22 | Dividends | |
Subject to the provisions of clause 11.3 of the Guarantee, the Borrower will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received promptly by the Guarantor directly or indirectly from the Borrowers shareholder (if such shareholder is not the Guarantor) by way of dividend. | ||
10.23 | Irrevocable payment instructions | |
The Borrower shall not modify, revoke or withhold the payment instructions set out in Clause 3.2 without the agreement of the Builder (in the case of Clause 3.2.1 only), the Agent and the Lenders . | ||
10.24 | Know your customer checks | |
If: |
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10.25 | Building Contract |
11. | PREPAYMENT |
11.1 | The Borrower may prepay all or part of the Loan (but if in part being an amount that reduces the Loan by a minimum amount of one (1) repayment instalment of principal of the Loan together with interest thereon) without penalty provided the prepayment is made on the relevant interest payment date and one (1) months prior written notice indicating the intended date of prepayment is given to the Agent, but compensation shall be payable to the Lenders in the sum of: |
11.1.1 | the difference (if positive), calculated by the Lenders, between the actual cost for the Lenders of the funding for the Loan and the rate of interest for the monies to be invested by the Lenders, applied to the amounts so prepaid for the period from said prepayment until the next interest prepayment date (if prepayment does not occur on an interest payment date). Details of any such calculation shall be supplied to the Borrower by the Lenders; and | ||
11.1.2 | the charges (if any) imposed on the Lenders by the French Authorities (funding or breakage costs of the French Authority in charge of monitoring the CIRR). |
11.2 | Any prepayment of the whole of the Loan shall be made together with all other sums due under this Agreement. | |
11.3 | Amounts prepaid shall be applied in accordance with Clause 17. | |
11.4 | Amounts prepaid may not be reborrowed. | |
12. | INTEREST ON LATE PAYMENTS | |
12.1 | Without prejudice to the provisions of Clause 13 and without this Clause in any way constituting a waiver of terms of payment, all sums due by the Borrower under this Agreement will automatically bear interest on a day to day basis from the date when they are payable until the date of actual payment at a rate per annum equal to the higher of: |
12.1.1 | EONIA plus [**] [Confidential Treatment] per cent. [**]; [Confidential Treatment] and | ||
12.1.2 | the CIRR plus [**] [Confidential Treatment] per cent. [**] [Confidential Treatment]. |
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13. | ACCELERATION EVENTS OF DEFAULT | |
13.1 | If any one of the Events of Default set out in Clause 13.2 occurs and remains unremedied: |
13.1.1 | if the Loan has not been drawn down, no drawing under the Loan may be requested from the Lenders; or | ||
13.1.2 | if the Loan has already been drawn down, the Lenders may require immediate payment of the outstanding principal amount of the Loan (including but without limitation the amount representing the financed Coface Premium) together with all other sums due under this Agreement: |
13.2 | The following are the Events of Default referred to in Clause 13.1: |
13.2.1 | Non-payment |
13.2.2 | Breach of other obligations |
(a) | Any Obligor fails to comply with any provision of any Security Document and in particular but without limitation any failure by the Guarantor to comply with the provisions of Clauses 9 (General Undertakings: Positive Covenants), 10 (General Undertakings: Negative Covenants) and/or 11 (Financial Undertakings and Ownership and Control of the Guarantor) of the Guarantee or there is any breach in the sole opinion of the Agent of any of the Transaction Documents. | ||
If the Loan has already been drawn down, an Event of Default shall not have arisen if the failure (if in the opinion of the Agent in its sole discretion it is capable of remedy) has been remedied within a period of thirty (30) days from the date of its occurrence, if the failure was known to that Obligor, or from the date the relevant Obligor is notified by the Agent of the failure, if the failure was not known to that Obligor, unless in any such case as aforesaid the Agent in its sole discretion considers that the failure is or could reasonably be expected to become materially prejudicial to the interests, rights or position of the Lenders; or | |||
(b) | If there is a repudiation or termination of any Transaction Document or if any of the parties thereto becomes entitled to terminate or repudiate any of them and evidences an intention so to do. |
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13.2.3 | Misrepresentation |
13.2.4 | Cross default |
(a) | Any event of default occurs under any financial contract or financial document relating to any Financial Indebtedness of any member of the Group; | ||
(b) | Any such Financial Indebtedness or any sum payable in respect thereof is not paid when due (after the expiry of any applicable grace period(s)) whether by acceleration or otherwise; | ||
(c) | Any Encumbrance over any assets of any member of the Group becomes enforceable; | ||
(d) | Any other Financial Indebtedness of any member of the Group is not paid when due or is or becomes capable of being declared due prematurely by reason of default or any security for the same becomes enforceable by reason of default; |
(i) | No Event of Default will arise if the relevant Financial Indebtedness is not accelerated or, if it is accelerated but, in aggregate, the Financial Indebtedness is less than twenty five million Dollars (USD25,000,000); and | ||
(ii) | Financial Indebtedness being contested by the Borrower in good faith will be disregarded for a period of one hundred and fifty (150) days from its occurrence if full details of the dispute are submitted to the Agent forthwith upon its occurrence. If the dispute remains unresolved for a period of more than one hundred and fifty (150) days from its occurrence, this Clause 13.2.4(ii) shall not apply to that Financial Indebtedness. |
13.2.5 | Winding-up |
13.2.6 | Moratorium or arrangement with creditors |
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13.2.7 | Appointment of liquidators etc. |
13.2.8 | Insolvency |
13.2.9 | Legal process |
13.2.10 | Analogous events |
13.2.11 | Cessation of business |
13.2.12 | Revocation of consents |
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13.2.13 | Unlawfulness |
(a) | the unlawfulness or impossibility preventing any Obligor from performing its obligations (other than its payment obligations under this Agreement, the other Transaction Documents) is cured within a period of twenty one (21) days of the occurrence of the event giving rise to the unlawfulness or impossibility and the relevant Obligor within the aforesaid period, performs its obligation(s) (except where the unlawfulness or impossibility adversely affects any Obligors payment obligations under this Agreement, the other Transaction Documents (the determination of which shall be in the Agents sole discretion) in which case the following provisions of this Clause 13.2.13 shall not apply); and/or | ||
(b) | where a Finance Party was aware of the default and could, in its sole discretion, mitigate the consequences of the unlawfulness or impossibility. The reasonable costs of mitigating the consequences of the unlawfulness or impossibility shall be borne by the Borrower save where such costs are of an internal administrative nature and are not incurred in dealings by the Finance Party with third parties. |
13.2.14 | Insurances |
13.2.15 | Disposals |
13.2.16 | Prejudice to security |
13.2.17 | Material adverse change |
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13.2.18 | Governmental intervention |
13.3 | If at any time during the period commencing on the day after the date of this Agreement and ending on the date falling sixty (60) days before the Intended Delivery Date (the Limited Period" ) any event should occur that would constitute an Event of Default, the Agent shall not be entitled to serve a notice under Clause 13.4 unless during the Limited Period: |
13.3.1 | there is a failure by an Obligor to perform any material obligation under the Transaction Documents on the relevant due date or within any applicable grace period, including but without limitation if the Guarantor fails to provide to the Agent the statement referred to in Clause 3.1.4 in the manner described in that Clause; or | ||
13.3.2 | the relevant event would imperil the security created by the Guarantee. In no event shall the provisions of this Clause 13.3 be interpreted as a waiver of the Agents right to serve a notice under Clause 13.4 in respect of any Event of Default which has occurred and remains unremedied on the date falling sixty (60) days before the Intended Delivery Date. |
13.4 | Notice of any Event of Default and/or of the acceleration of the payment of the principal of the Loan, interest thereon and all other sums due under this Agreement shall be given by the Agent in accordance with Clause 27. | |
13.5 | In no event shall any delay in exercising the Lenders right to require advance repayment be interpreted as a waiver of this right. | |
13.6 | Furthermore, in case of such accelerated repayment following an Event of Default, the Borrower shall be liable to pay to the Agent, in addition to the Coface Premium pursuant to Clause 6, compensation calculated as provided for in Clause 11. | |
13.7 | Following an Event of Default and for so long as the same remains unremedied, the Borrower irrevocably authorises the Agent and the Lenders to apply any credit balance to which the Borrower is entitled upon any account of the Borrower with any branch of any of the Agent and the Lenders in or towards satisfaction of any sum due to the Agent or any Lender hereunder but unpaid, and to combine any accounts of the Borrower for this purpose. If such set-off requires a credit balance in a currency other than the required |
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currency to be transferred to an account maintained in connection herewith the transfer shall be effected by crediting to the account in question the amount of the required currency which the Agent or the Lender (as the case may be) could obtain by exchanging such currency for the required currency at the rate of exchange at which its Facility Office would, at the opening of business on the date on which the combination is effected, have sold the currency of that credit balance for the required currency for immediate delivery. |
13.8 | In the event that the accelerated amount is received by the Agent before the date of normal maturity of the accelerated interest payments, the Borrower shall, subject to no sums remaining due to the Lenders from the Borrower, be entitled to refund of interest for the actual number of days between the date on which the Lenders received the amount and the normal date for payment of such amount. |
14. | MANDATORY PREPAYMENT | |
14.1 | Subject to Clause 14.2, the Borrower shall forthwith prepay the outstanding principal amount of the Loan (including but without limitation the amount representing the financed Coface Premium) together with all other sums due under this Agreement if: |
14.1.1 | the Vessel shall become a Total Loss; or | ||
14.1.2 | if the Coface Insurance Policy is modified, suspended, terminated or rescinded unless caused by the wilful misconduct or gross negligence of a Finance Party. |
14.2 | However, if the Vessel shall become a Total Loss (but without prejudice to the Lenders rights to receive the proceeds of the Insurances or Compulsory Acquisition forthwith upon collection as may be provided for in the Mortgage and/or the Assignment of Insurances), the Borrower shall not be required to pay its indebtedness under this Agreement earlier than the date which is one hundred and fifty (150) days after the Total Loss Date. | |
14.3 | The provisions of Clause 11 shall apply mutatis mutandis to any prepayment pursuant to this Clause 14. | |
15. | CURRENCY OF PAYMENT |
15.1.1 | BNP Paribas, Paris, Swift code: [**] [Confidential Treatment], IBAN: [**] [Confidential Treatment], under the following reference: BFI/LSI/BOCI Crédits Acheteurs - Commercial Loan Hull No D 33 dated September 2006 in the case of euro; and | ||
15.1.2 | the account of BNP Paribas, Paris, Swift code: [**] [Confidential Treatment], account number [**] [Confidential Treatment] with BNP Paribas S.A., The Equitable Building, 787 Seventh Avenue, New York, New York NY 10019, Swift code: [**] [Confidential Treatment], under the following reference: BFI/LSI/BOCI Crédits Acheteurs Commercial Loan Hull No D 33 dated September 2006 in the case of Dollars. |
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16. | SECURITY |
16.1.1 | the Guarantee to be signed within ten (10) Business Days of the date of this Agreement in favour of the Finance Parties; | ||
16.1.2 | the Mortgage to be executed and registered in favour of the Finance Parties forthwith upon delivery of the Vessel; and | ||
16.1.3 | the Assignment of Warranty Rights, the Assignment of Insurances, the Assignment of Earnings and the Assignment of Management Agreement to be executed in favour of the Finance Parties forthwith upon delivery of the Vessel. |
17. | APPLICATION OF SUMS RECEIVED |
17.1.1 | in priority, to payments of any kind due or in arrears in the order of their due payment dates and first, to fees, charges and expenses, second, to interest payable pursuant to Clause 12, third, to interest payable pursuant to Clause 4, fourth, to the principal of the Loan payable pursuant to Clause 4 and, fifth, to any other sums due under this Agreement and, if relevant, pro rata to each of the Lenders; or | ||
17.1.2 | if no payments are in arrears or if these payments have been discharged as set out above, then and to sums remaining due under this Agreement and, if relevant, pro rata to each of the Lenders and in each case in inverse order of maturity, the interest being recalculated accordingly. |
18. | CHANGES TO THE LENDERS | |
18.1 | Assignments and transfers by the Lenders |
18.1.1 | assign its rights; or | ||
18.1.2 | transfer by novation its rights and obligations, |
18.2 | Conditions of assignment or transfer |
18.2.1 | The consent of the Borrower is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is to another Lender or an Affiliate of a Lender. | ||
18.2.2 | The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. |
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18.2.3 | The assignment or transfer must be with respect to a minimum Commitment of [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] or, if less, the Existing Lenders full Commitment. | ||
18.2.4 | An assignment will only be effective on: |
(a) | receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was an Original Lender; and | ||
(b) | performance by the Agent of all necessary know your customer or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender. |
18.2.5 | A transfer will only be effective if the procedure set out in Clause 18.5 is complied with. | ||
18.2.6 | If: |
(a) | a Lender assigns or transfers its rights or obligations under the Security Documents or changes its Facility Office; and | ||
(b) | as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 8, |
18.3 | Assignment or transfer fee |
18.4 | Limitation of responsibility of Existing Lenders |
18.4.1 | Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: |
(a) | the legality, validity, effectiveness, adequacy or enforceability of the Security Documents or any other documents; | ||
(b) | the financial condition of any Obligor; | ||
(c) | the performance and observance by any Obligor of its obligations under the Security Documents or any other documents; or |
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(d) | the accuracy of any statements (whether written or oral) made in or in connection with any Security Document or any other document, |
18.4.2 | Each New Lender confirms to the Existing Lender and the other Finance Parties that it: |
(a) | has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Security Document; and | ||
(b) | will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Security Documents or any Commitment is in force. |
18.4.3 | Nothing in any Security Document obliges an Existing Lender to: |
(a) | accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 18; or | ||
(b) | support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Security Documents or otherwise. |
18.5 | Procedure for transfer |
18.5.1 | Subject to the conditions set out in Clause 18.2 a transfer is effected in accordance with Clause 18.5.3 when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to Clause 18.5.2, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate. | ||
18.5.2 | The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender. | ||
18.5.3 | On the Transfer Date: |
(a) |
to the extent that in the Transfer Certificate the Existing Lender
seeks to transfer by novation its rights and obligations under the Security
Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Security Documents and their
respective rights against one another under the Security Documents shall be
cancelled (being the
Discharged Rights and Obligations
);
|
||
(b) | each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor |
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and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender; | |||
(c) | the Agent, the Mandated Lead Arrangers, the New Lender and the other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Mandated Lead Arrangers and the Existing Lender shall each be released from further obligations to each other under the Security Documents; and | ||
(d) | the New Lender shall become a Party as a Lender . |
18.6 | Copy of Transfer Certificate to Borrower |
18.7 | Permitted disclosure |
18.7.1 | any person to (or through) whom that Lender assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this Agreement; | ||
18.7.2 | any person with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Agreement or any Obligor; | ||
18.7.3 | any person to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation; | ||
18.7.4 | any other Finance Party, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; | ||
18.7.5 | Coface, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; | ||
18.7.6 | the Guarantor or any other member of the Group, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; or | ||
18.7.7 | auditors, insurance and reinsurance brokers, insurers and reinsurers and professional advisers, including legal advisers, which need to know such information, |
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19. | CHANGES TO THE OBLIGORS |
20. | ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS | |
20.1 | Appointment of the Agent |
20.1.1 | Each other Finance Party appoints the Agent to act as its agent under and in connection with this Agreement and the other Security Documents and the Coface Insurance Policy. | ||
20.1.2 | Each other Finance Party authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Security Documents together with any other incidental rights, powers, authorities and discretions. |
20.2 | Duties of the Agent |
20.2.1 | The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party. | ||
20.2.2 | Except where a Security Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. | ||
20.2.3 | If the Agent receives notice from a Party referring to this Agreement, describing an Event of Default and stating that the circumstance described is an Event of Default, it shall promptly notify the other Finance Parties. | ||
20.2.4 | If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or a Mandated Lead Arranger) under this Agreement it shall promptly notify the other Finance Parties. | ||
20.2.5 | The Agents duties under the Security Documents are solely administrative in nature. |
20.3 | Role of the Mandated Lead Arrangers |
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20.4 | No fiduciary duties |
20.4.1 | Nothing in this Agreement constitutes the Agent or any of the Mandated Lead Arrangers as a trustee or fiduciary of any other person. | ||
20.4.2 | Neither the Agent nor any of the Mandated Lead Arrangers shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account. |
20.5 | Business with the Guarantor |
20.6 | Rights and discretions of the Agent |
20.6.1 | The Agent may rely on: |
(a) | any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and | ||
(b) | any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify. |
20.6.2 | The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: |
(a) | no Event of Default has occurred (unless it has actual knowledge of an Event of Default arising under Clause 13.2); and | ||
(b) | any right, power, authority or discretion vested in any Party or the Lenders has not been exercised. |
20.6.3 | The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts. | ||
20.6.4 | The Agent may act in relation to the Security Documents through its personnel and agents. | ||
20.6.5 | The Agent may disclose to any other Party any information it reasonably believes it has received as the Agent under this Agreement. | ||
20.6.6 | Notwithstanding any other provision of any Security Document to the contrary, neither the Agent nor any of the Mandated Lead Arrangers is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. |
20.7 | Lenders instructions |
20.7.1 | Unless a contrary indication appears in a Security Document, the Agent shall: |
(a) | exercise any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Lenders (or, if so |
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instructed by the Lenders, refrain from exercising any right, power,
authority or discretion vested in it as the Agent); and
|
|||
(b) | not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Lenders. |
20.7.2 | Unless a contrary indication appears in a Security Document, any instructions given by the Lenders will be binding on all the Finance Parties. | ||
20.7.3 | The Agent may refrain from acting in accordance with the instructions of the Lenders until it has received such security as it may require for any cost, loss or liability (together with any associated value added tax) which it may incur in complying with the instructions. | ||
20.7.4 | In the absence of instructions from the Lenders the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders. | ||
20.7.5 | The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lenders consent) in any legal or arbitration proceedings relating to any Security Document. |
20.8 | Responsibility for documentation |
20.8.1 | the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, a Mandated Lead Arranger, an Obligor or any other person given in or in connection with any Transaction Document or the Coface Insurance Policy; or | ||
20.8.2 | is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Coface Insurance Policy or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Transaction Document or the Coface Insurance Policy. |
20.9 | Exclusion of liability |
20.9.1 | Without limiting Clause 20.9.2, the Agent will not be liable for any action taken by it under or in connection with any Security Document, unless directly caused by its gross negligence or wilful misconduct. | ||
20.9.2 | No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Security Document and any officer, employee or agent of the Agent may rely on this Clause. | ||
20.9.3 | The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Security Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose. | ||
20.9.4 | Nothing in this Agreement shall oblige the Agent or a Mandated Lead Arranger to carry out any know your customer or other checks in relation to any person |
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on behalf of any Lender and each Lender confirms to the Agent and the Mandated Lead Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or a Mandated Lead Arranger. |
20.10 | Lenders indemnity to the Agent |
20.11 | Resignation of the Agent |
20.11.1 | The Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrower. | ||
20.11.2 | Alternatively the Agent may resign by giving notice to the other Finance Parties and the Borrower, in which case the Lenders (after consultation with the Borrower) may appoint a successor Agent. | ||
20.11.3 | If the Lenders have not appointed a successor Agent in accordance with Clause 20.11.2 within thirty (30) days after notice of resignation was given, the Agent (after consultation with the Borrower) may appoint a successor Agent. | ||
20.11.4 | The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Security Documents. | ||
20.11.5 | The Agents resignation notice shall only take effect upon the appointment of a successor. | ||
20.11.6 | Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Security Documents but shall remain entitled to the benefit of this Clause 20. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party. | ||
20.11.7 | After consultation with Coface, the Lenders may, by notice to the Agent, require it to resign in accordance with Clause 20.11.2. In this event, the Agent shall resign in accordance with Clause 20.11.2. |
20.12 | Confidentiality |
20.12.1 | In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments. | ||
20.12.2 | If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it. |
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20.13 | Relationship with the Lenders |
20.14 | Credit appraisal by the Lenders |
20.14.1 | the financial condition, status and nature of the Guarantor and each Subsidiary of the Guarantor; | ||
20.14.2 | the legality, validity, effectiveness, adequacy or enforceability of any Security Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Security Document; | ||
20.14.3 | whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Security Document, the transactions contemplated by the Security Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Security Document; and | ||
20.14.4 | the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Security Document, the transactions contemplated by the Security Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Security Document. |
20.15 | Deduction from amounts payable by the Agent |
21. | CONDUCT OF BUSINESS BY THE FINANCE PARTIES |
21.1 | No provision of this Agreement will: |
21.1.1 | interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; | ||
21.1.2 | oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or | ||
21.1.3 | oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of tax. |
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22. | SHARING AMONG THE FINANCE PARTIES | |
22.1 | Payments to Finance Parties |
22.1.1 | the Recovering Finance Party shall, within three (3) Business Days, notify details of the receipt or recovery to the Agent; | ||
22.1.2 | the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 17 and Clause 23), without taking account of any tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and | ||
22.1.3 | the Recovering Finance Party shall, within three (3) Business Days of demand by the Agent, pay to the Agent an amount (the Sharing Payment ) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 17 and Clause 23. |
22.2 | Redistribution of payments |
22.3 | Recovering Finance Partys rights |
22.3.1 | On a distribution by the Agent under Clause 22.2, the Recovering Finance Party will, if possible under the relevant applicable laws, be subrogated to the rights of the Finance Parties which have shared in the redistribution. | ||
22.3.2 | If and to the extent that the Recovering Finance Party is not able to rely on its rights under Clause 22.3.1, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable. |
22.4 | Reversal of redistribution |
22.4.1 | each Lender which has received a share of the relevant Sharing Payment pursuant to Clause 22.4 shall, upon request of the Agent, pay to the Agent for account of that Recovering Finance Party 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 Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and | ||
22.4.2 | that Recovering Finance Partys rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed. |
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22.5 | Exceptions |
22.5.1 | This Clause 22 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor. | ||
22.5.2 | A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if: |
(a) | it notified that other Finance Party of the legal or arbitration proceedings; and | ||
(b) | that other Finance Party 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. |
23. | PAYMENT MECHANICS | |
23.1 | Payments to the Agent |
23.1.1 | On each date on which an Obligor or a Lender is required to make a payment under a Security Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Security Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment. | ||
23.1.2 | Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London) with such bank as the Agent specifies. |
23.2 | Distributions by the Agent |
23.3 | Distributions to an Obligor |
23.4 | Clawback |
23.4.1 | Where a sum is to be paid to the Agent under the Security Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to |
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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.
|
|||
23.4.2 | If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds. |
23.5 | No set-off by Obligors |
23.6 | Business Days |
23.6.1 | Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). | ||
23.6.2 | During any extension of the due date for payment of any principal or unpaid sum under this Agreement interest is payable on the principal or unpaid sum at the rate payable on the original due date. |
23.7 | Currency of account |
23.7.1 | Subject to Clauses 23.7.2 and 23.7.3 euro is the currency of account and payment for any sum from an Obligor under any Security Document. | ||
23.7.2 | Each payment in respect of costs, expenses or taxes shall be made in the currency in which the costs, expenses or taxes are incurred. | ||
23.7.3 | Any amount expressed to be payable in a currency other than euro shall be paid in that other currency. |
23.8 | Change of currency |
23.8.1 | Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then: |
(a) | any reference in the Security Documents to, and any obligations arising under the Security Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Lenders and the Borrower); and | ||
(b) | any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably). |
23.8.2 | If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Lenders and the Borrower) specifies to be necessary, be amended to comply with any |
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generally accepted conventions and market practice in the relevant interbank market and otherwise to reflect the change in currency. |
24. | GOVERNING LAW |
25. | ENFORCEMENT |
25.1 | Jurisdiction of English courts |
25.2 | Service of process |
25.2.1 | irrevocably appoints Clifford Chance Secretaries Limited as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and | ||
25.2.2 | agrees that failure by a process agent to notify the Borrower of the process will not invalidate the proceedings concerned. |
26. | APPENDICES |
27. | NOTICES |
For the Borrower:
|
c/o 7665 Corporate Center Drive | |
|
Miami | |
|
Florida 33126 | |
|
United States of America | |
|
Facsimile: +1 305 436 4140 (Ms Bonnie Biumi) and
+1 305 436 4117 (Legal Department) |
|
|
Attention: Ms Bonnie Biumi and the Legal Department |
- 57 -
For the Agent:
|
BNP Paribas | |
|
ECEP/Export Finance | |
|
ACI: CHDESA1 | |
|
37 Place du Marché Saint-Honoré | |
|
75031 Paris Cedex 01 | |
|
France | |
|
Facsimile: +33 01 4316 8184 | |
|
Attention: Mrs Dominique Laplasse (Team Head) | |
|
||
For the Lenders:
|
c/o the Agent |
- 58 -
- 59 -
- 60 -
Name | Registered Address | Registered Number with the | ||
Registry of Trade and | ||||
Companies | ||||
BNP PARIBAS
|
16 boulevard des
Italiens, 75009 Paris, France |
662 042 449 (RCS Paris) | ||
|
||||
CALYON
|
9 quai du Président
Paul Doumer, 92920 Paris La Défense Cedex, France |
304 187 701 (RCS Nanterre) | ||
|
||||
HSBC FRANCE
|
103 avenue des Champs
Elysées, 75419 Paris, Cedex 08, France |
775 670 284 (RCS Paris) | ||
|
||||
SOCIETE GENERALE
|
29 boulevard
Haussmann, 75009 Paris, France |
552 120 222 (RCS Paris) | ||
|
||||
each a French société anonyme
|
- 61 -
To:
|
[ ] as Agent | |
|
||
From:
|
[ The Existing Lender ] (the Existing Lender ) and [ The New Lender ] (the New Lender ) | |
|
||
Dated:
|
1. | We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate. | |
2. | We refer to Clause 18.5: |
(c) | The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lenders Commitment, rights and obligations referred to in the Schedule in accordance with Clause 18.5. | ||
(d) | The proposed Transfer Date is [ ]. | ||
(e) | The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 27 are set out in the Schedule. |
3. | The New Lender expressly acknowledges the limitations on the Existing Lenders obligations set out in Clause 18.4.3. | |
4. | This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate. | |
5. | This Transfer Certificate is governed by English law. |
[Existing Lender]
|
[New Lender] | |
|
||
By:
|
By: |
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- 63 -
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Page | ||||||
1 |
Definitions and Construction
|
1 | ||||
2 |
Guarantee and Indemnity
|
2 | ||||
3 |
Survival of Guarantors Liability
|
3 | ||||
4 |
Continuing Guarantee
|
4 | ||||
5 |
Exclusion of the Guarantors Rights
|
5 | ||||
6 |
Payments
|
6 | ||||
7 |
Enforcement
|
7 | ||||
8 |
Representations and Warranties
|
7 | ||||
9 |
General Undertakings: Positive Covenants
|
10 | ||||
10 |
General Undertakings: Negative Covenants
|
11 | ||||
11 |
Financial Undertakings and Ownership and Control of the Guarantor
|
13 | ||||
12 |
Discharge
|
18 | ||||
13 |
Assignment and Transfer
|
18 | ||||
14 |
Miscellaneous Provisions
|
19 | ||||
15 |
Waiver of Immunity
|
20 | ||||
16 |
Notices
|
20 | ||||
17 |
Governing Law
|
21 | ||||
18 |
Jurisdiction
|
21 | ||||
Schedule 1 |
Quarterly Statement of Financial Covenants
|
24 | ||||
Schedule 2 |
Particulars of Agent and Lenders
|
27 |
(1) | NCL CORPORATION LTD. being a company validly existing under the laws of Bermuda with registration number EC34678 and with its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as guarantor (the Guarantor ); |
(2) | BNP PARIBAS, CALYON, HSBC FRANCE AND SOCIETE GENERALE, whose details are more particularly set out in Schedule 2 as lenders (the Lenders ); and | |
(3) | BNP PARIBAS, whose details are more particularly set out in Schedule 2 as agent (the Agent and collectively with the Lenders the Beneficiaries ). |
(A) | By a loan agreement dated 22 September 2006 (the Loan Agreement ) made between (among others) (1) F3 Two, Ltd. as borrower (the Borrower ) (2) the Lenders and (3) the Agent, the Lenders have agreed, on the terms and conditions therein set out, to make available to the Borrower their participations in a loan facility of up to six hundred and sixty two million nine hundred and five thousand three hundred and twenty euro (EUR 662,905,320) (the Loan ) in order to assist the Borrower in financing part of the purchase price of the Vessel. |
(B) | It is a condition precedent to the Beneficiaries performing their obligations under the Loan Agreement that the Guarantor enters into this Deed. |
1 | Definitions and Construction |
1.1 | In this Deed the following terms and expressions shall have the meanings set out below; in addition, terms and expressions not defined herein but whose meanings are defined in the Loan Agreement shall have the meanings set out therein. | ||
Accounts means the audited consolidated profit and loss account and balance sheet (including all additional information and notes thereto) of the Guarantor and its consolidated Subsidiaries together with the relative directors and auditors reports; | |||
Event of Default means any of the events specified in clause 13.2 of the Loan Agreement or specified as such in Clause 11; | |||
Obligors means the Borrower, the Guarantor and the Manager; | |||
Office means in respect of the Agent and each Lender its office at the address set out beneath its name in Schedule 2 or such other office as it shall from time to time select and notify through the Agent to the Borrower; |
Outstanding Indebtedness means all sums of any kind payable actually or contingently to the Finance Parties under or pursuant to the Loan Agreement or any Transaction Document (whether by way of repayment of principal, payment of interest or default interest, payment of any indemnity or counter-indemnity, reimbursement for fees, costs or expenses or otherwise howsoever); and | |||
Process Agent means Clifford Chance Secretaries Limited or any other person in England nominated by the Assignor and approved by the Agent to accept service of legal proceedings on its behalf under any of the Transaction Documents. |
1.2 | In this Deed unless the context otherwise requires: |
1.2.1 | clause headings are inserted for convenience of reference only and shall be ignored in the construction of this Deed; | ||
1.2.2 | references to Clauses and to Schedules are to be construed as references to clauses of and schedules to this Deed unless otherwise stated and references to this Deed are to be construed as references to this Deed including its Schedules; | ||
1.2.3 | references to (or to any specified provision of) this Deed or any other document shall be construed as references to this Deed, that provision or that document as from time to time amended, supplemented or novated; | ||
1.2.4 | references to any Act or any statutory instrument shall be construed as references to that Act or that statutory instrument as from time to time re-enacted, amended or supplemented; | ||
1.2.5 | references to any party to this Deed or any other document shall include reference to such partys successors and permitted assigns and transferees; | ||
1.2.6 | words importing the plural shall include the singular and vice versa; | ||
1.2.7 | references to a person shall be construed as references to an individual, firm, company, corporation, unincorporated body of persons or any state or any agency thereof; and | ||
1.2.8 | where any matter requires the approval or consent of the Lenders or the Agent such approval or consent shall not be deemed to have been given unless given in writing; where any matter is required to be acceptable to the Lenders or the Agent, the Lenders or the Agent (as the case may be) shall not be deemed to have accepted such matter unless its acceptance is communicated in writing; each of the Lenders and the Agent may give or withhold its consent, approval or acceptance at its unfettered discretion. |
2 | Guarantee and Indemnity |
2.1 | In consideration of the Lenders agreeing at the request of the Guarantor to make the Loan available to the Borrower in accordance with the terms of the Loan Agreement, the payment by the Beneficiaries to the Guarantor of ten Dollars (USD 10) and other good and valuable consideration (the receipt and adequacy of which the Guarantor hereby acknowledges) the Guarantor: |
2
2.1.1 | as primary obligor as and for its own debt and not merely as surety hereby undertakes to the Lenders to be responsible for and hereby guarantees to the Lenders: |
(a) | the due and punctual payment by the Borrower to the Lenders or the Agent (for itself and on behalf of the Lenders) (as the case may be) (as and when due by acceleration, demand or otherwise howsoever) of the Outstanding Indebtedness and every part thereof; and | ||
(b) | the due and punctual performance of all the obligations to be performed by each of the Obligors under or pursuant to the Loan Agreement and the other Security Documents; and |
2.1.2 | unconditionally undertakes immediately on demand by the Agent from time to time to pay and/or perform its obligations under Clause 2.1.1. |
2.2 | For the same consideration as referred to in Clause 2.1 the Guarantor (as a separate and independent obligation) unconditionally undertakes immediately on demand by the Agent from time to time to indemnify the Beneficiaries and hold each of them harmless in respect of: |
2.2.1 | any loss incurred by the Beneficiaries as a result of the Loan Agreement and each other Security Document to which any of the Obligors is a party or any provision thereof becoming invalid, void, voidable or unenforceable for any reason whatsoever after execution hereof; and | ||
2.2.2 | any loss or damage of any kind arising directly or indirectly from any failure on the part of any of the Obligors to perform any obligation to be performed by any of the Obligors under and pursuant to the Loan Agreement and each other Security Document to which any of the Obligors is a party. |
3 | Survival of Guarantors Liability |
3.1 | The Guarantors liability to the Beneficiaries under this Deed shall not be discharged, impaired or otherwise affected by reason of any of the following events or circumstances (regardless of whether any such events or circumstances occur with or without the Guarantors knowledge or consent): |
3.1.1 | any time, forbearance or other indulgence given or agreed by any of the Finance Parties to or with any of the Obligors or any other person in respect of any of their obligations under the Loan Agreement and each other Transaction Document to which any of the Obligors or that other person is a party; or | ||
3.1.2 | any legal limitation, disability or incapacity relating to any of the Obligors; or | ||
3.1.3 | any invalidity, irregularity, unenforceability, imperfection or avoidance of or any defect in any security granted by, or the obligations of any of the Obligors or any other person under, the Loan Agreement and each other Transaction Document to which any of the Obligors or that other person is |
3
a party or any amendment to or variation thereof or of any other document or security comprised therein; or | |||
3.1.4 | any change in the name, constitution, memorandum of association or otherwise of any of the Obligors or the amalgamation or merger of any of the Obligors with any other corporate entity; or | ||
3.1.5 | the liquidation, bankruptcy or dissolution (or proceedings analogous thereto) of any of the Obligors or any other person or the appointment of a receiver or administrative receiver or administrator or trustee or similar officer of any of the assets of any of the Obligors or any other person or the occurrence of any circumstances whatsoever affecting any Obligors or that other persons liability to discharge its obligations under the Loan Agreement and each other Transaction Document to which it is a party; or | ||
3.1.6 | any challenge, dispute or avoidance by any liquidator of any of the Obligors or any other person in respect of any claim by the Guarantor by right of subrogation in any such liquidation; or | ||
3.1.7 | any release of any other Obligor or any other person or any renewal, exchange or realisation of any security or obligation provided under or by virtue of any of the Transaction Documents or the provision to any of the Finance Parties at any time of any further security for the obligations of the Borrower under any of the Transaction Documents; or | ||
3.1.8 | the release of any co-guarantor and/or indemnitor who is now or may hereafter become under a joint and several liability with the Guarantor under this Deed or the release of any other guarantor, indemnitor or other third party obligor in respect of the obligations of any Obligor under any of the Transaction Documents; or | ||
3.1.9 | any failure on the part of any of the Finance Parties (whether intentional or not) to take or perfect any security agreed to be taken under or in relation to any of the Transaction Documents or to enforce any of the Transaction Documents; or | ||
3.1.10 | any other act, matter or thing (save for repayment in full of the Outstanding Indebtedness) which might otherwise constitute a legal or equitable discharge of any of the Guarantors obligations under this Deed. |
3.2 | The Guarantors liability to the Beneficiaries under this Deed shall not be discharged by reason of any of the events or circumstances referred to in Clause 3.1 in so far as they relate to Coface. |
4 | Continuing Guarantee |
4.1 | This Deed shall be: |
4.1.1 | a continuing guarantee remaining in full force and effect until irrevocable payment in full has been received by the Beneficiaries of each and every part and the ultimate balance of the Outstanding Indebtedness in accordance with the Loan Agreement and each other Security Document to which any of the Obligors is a party; and |
4
4.1.2 | in addition to and not in substitution for or in derogation of any other security held by any of the Finance Parties from time to time in respect of the Outstanding Indebtedness or any part thereof. |
4.2 | Any satisfaction of obligations by the Guarantor to the Beneficiaries or any discharge given by the Beneficiaries to the Guarantor or any other agreement reached between the Beneficiaries and the Guarantor in relation to this Deed shall be, and be deemed always to have been, void ab initio if any act satisfying any of the said obligations or on the faith of which any such discharge was given or any such agreement was entered into is subsequently avoided in whole or in part by or pursuant to any provision of any applicable law whatsoever. | ||
4.3 | This Deed shall remain the property of the Beneficiaries and, notwithstanding that all monies and liabilities due or incurred by any of the Obligors to the Beneficiaries which are guaranteed hereunder shall have been paid or discharged, the Beneficiaries shall be entitled not to discharge this Deed or any security held by the Beneficiaries for the obligations of the Guarantor hereunder for such period as may in the reasonable opinion of the Beneficiaries be necessary or appropriate under any applicable insolvency law after the last of such monies and liabilities have been paid or discharged and in the event of bankruptcy, winding-up or any similar proceedings being commenced in respect of any of the Obligors or any other person, the Beneficiaries shall be at liberty not to discharge this Deed or any security held by the Beneficiaries for the obligations of the Guarantor hereunder for and during such further period as the Beneficiaries may determine at their sole discretion. |
5 | Exclusion of the Guarantors Rights |
5.1 | Until the obligations of the Obligors under the Loan Agreement and each other Security Document to which they are a party have been fully performed, the Guarantor shall not: |
5.1.1 | be entitled to share in or succeed to or benefit from (by subrogation or otherwise) any rights which the Beneficiaries may have in respect of the Outstanding Indebtedness or any security therefor or all or any of the proceeds of such rights or security; or | ||
5.1.2 | without the prior written consent of the Beneficiaries: |
(a) | exercise in respect of any amount paid by the Guarantor hereunder any right of indemnity, subrogation, contribution or any other right or remedy which it may have in respect thereof; or | ||
(b) | claim payment of any other monies for the time being due to the Guarantor or to which it may become entitled or exercise or enforce or benefit from any other right, remedy or security in respect thereof; or | ||
(c) | prove in a liquidation of any Obligor in competition with the Beneficiaries for any monies owing to the Guarantor by any other Obligor on any account whatsoever, |
5
PROVIDED ALWAYS that if the Guarantor, in breach of this Clause, receives or recovers any monies pursuant to any such exercise, claim or proof, such monies shall be held by the Guarantor as trustee upon trust for the Beneficiaries to apply the same as if they were monies received or recovered by the Beneficiaries under this Deed. |
6 | Payments |
6.1 | Each payment to be made by the Guarantor hereunder shall be made in immediately available funds in the currency in which such payment is due without set-off, counterclaim, deduction or retention of any kind by payment to such bank account or accounts as the Agent may from time to time notify to the Guarantor in writing. | ||
If the Guarantor is required by law to make such a payment subject to the deduction or withholding of Taxes, in which case the sum payable by the Guarantor in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Lenders receive and retain (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which they would have received and so retained had no such deduction or withholding been made or required to be made. | |||
6.2 | Without prejudice to the provisions of Clause 6.1, if any Lender or the Agent on the Lenders behalf is required to make any payment on account of Tax (not being a tax imposed on the net income of its Office by the jurisdiction in which it is incorporated or in which its Office is located or any other tax existing and applicable on the date of this Deed under the laws of any jurisdiction) on or in relation to any sum received or receivable hereunder by such Lender or the Agent on the Lenders behalf (including, without limitation, any sum received or receivable under this Clause 6) or any liability in respect of any such payment is asserted, imposed, levied or assessed against such Lender or the Agent on the Lenders behalf, the Guarantor shall, upon demand of the Agent, indemnify such Lender or the Agent against such payment or liability, together with any interest, penalties and expenses payable or incurred in connection therewith, other than interest, penalties, and expenses that are otherwise imposed or asserted on account of the bad faith or wilful neglect of such Lender or the Agent. | ||
If any Lender proposes to make a claim under the provisions of this Clause 6.2 it shall certify to the Guarantor in reasonable detail within thirty (30) days (or such longer period as any Lender may reasonably require) after becoming aware of the event by reason of which it is entitled to make its claim or claims the basis of its claim or claims, such certificate to be conclusive, save for manifest error. | |||
6.3 | The certificate of the Agent from time to time as to sums owed by any Obligor under the Security Documents and sums owed by the Guarantor hereunder shall, save for manifest error, be conclusive and binding for all purposes and prima facie evidence of the existence and extent of such debts in any legal action or proceedings arising in connection herewith. | ||
6.4 | If the Guarantor makes any payment hereunder in respect of which it is required by law to make any deduction or withholding for Taxes, it shall pay the full amount to be deducted or withheld to the relevant taxation or other authority |
6
within the time allowed for such payment under applicable law and shall deliver to the Agent within thirty (30) days after it has made such payment to the applicable authority any original receipt issued by such authority evidencing the payment to such authority of all amounts so required to be deducted or withheld from such payment. | |||
If an additional payment is made under Clause 6.1 and any Lender or the Agent on its behalf determines that it has received or been granted a credit against or relief of or calculated with reference to the deduction or withholding giving rise to such additional payment, such Lender or the Agent (as the case may be) shall, to the extent that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment and provided that it has received the cash benefit of such credit, relief or remission, pay to the Guarantor such amount as such Lender or the Agent shall in its reasonable opinion have concluded to be attributable to the relevant deduction or withholding. Any such payment shall be conclusive evidence of the amount due to the Guarantor hereunder and shall be accepted by the Guarantor in full and final settlement of its rights of reimbursement hereunder in respect of such deduction or withholding. Nothing herein contained shall interfere with the right of any Lender and the Agent to arrange their respective tax affairs in whatever manner they think fit. |
7 | Enforcement |
7.1 | The Beneficiaries shall not be obliged before taking steps to enforce this Deed to take any action whatsoever against any of the Obligors or any other person and the Guarantor hereby waives all such formalities or rights to which it would otherwise be entitled or which the Beneficiaries would otherwise first be required to satisfy or fulfil before proceeding or making demand against the Guarantor hereunder provided that the Beneficiaries shall not be entitled to enforce their rights under this Deed otherwise than in circumstances which would constitute an Event of Default. |
8 | Representations and Warranties |
8.1 | Duration |
8.1.1 | The representations and warranties in Clause 8.2 shall survive the execution of this Deed and shall be deemed to be repeated, with reference mutatis mutandis to the facts and circumstances subsisting, as if made on each day until each Obligor has no remaining obligations, actual or contingent, under or pursuant to the Loan Agreement or any of the other Security Documents. | ||
8.1.2 | The representations and warranties in Clause 8.3 shall survive the execution of this Deed and shall be deemed to be repeated, with reference mutatis mutandis to the facts and circumstances subsisting, as if made on the date falling sixty (60) days before the Intended Delivery Date and thereafter on each day until each Obligor has no remaining obligations, actual or contingent, under or pursuant to the Loan Agreement or any of the other Security Documents. |
8.2 | Continuing representations and warranties The Guarantor represents and warrants to the Beneficiaries that: |
7
8.2.1 | it is a limited liability exempt company, duly incorporated and validly existing under the laws of Bermuda, possessing perpetual corporate existence, the capacity to sue and be sued in its own name and the power to own its assets and carry on its business as it is now being conducted; | ||
8.2.2 | The Guarantor is and shall remain, after the giving of this Deed, solvent in accordance with the laws of Bermuda and the United Kingdom and in particular with the provisions of the Insolvency Act 1986 (as from time to time amended) and the requirements thereof; | ||
8.2.3 | it has the power to enter into and perform this Deed and all necessary corporate or other action has been taken to authorise the entry into and performance of this Deed; | ||
8.2.4 | this Deed constitutes its legal, valid and binding obligations enforceable in accordance with its terms; | ||
8.2.5 | the entry into and performance of this Deed and the transactions contemplated hereby do not and will not be a breach of or conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | its constitutional documents; or | ||
(c) | any agreement or document to which it is a party or which is binding upon it or any of its assets, |
nor result in the creation or imposition of any Encumbrance on any of its assets pursuant to the provisions of any such agreement or document; | |||
8.2.6 | all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Deed and the transactions contemplated hereby have been obtained or effected and are in full force and effect; | ||
8.2.7 | all information furnished by or on behalf of the Guarantor relating to the business and affairs of any member of the Group in connection with this Deed was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; | ||
8.2.8 | the Guarantor has fully disclosed to the Lenders through the Agent all facts relating to the Group which it knows or should reasonably know and which might reasonably be expected to influence the Lenders in deciding whether or not to enter into the Loan Agreement; | ||
8.2.9 | the Accounts for the financial year ended 31 December 2005 (which accounts have been prepared in accordance with GAAP) fairly represent the consolidated financial condition of the Guarantor as at 31 December 2005; |
8
8.2.10 | the claims of the Beneficiaries against the Guarantor under this Deed will rank at least pari passu with the claims of all other unsecured creditors of the Guarantor other than claims of such creditors to the extent that the same are statutorily preferred; | ||
8.2.11 | subject to Clause 10.6, no member of the Group has taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of the Guarantors knowledge and belief) threatened against any member of the Group for its winding-up and/or dissolution or for the appointment of a liquidator, administrator, receiver, administrative receiver, trustee or similar officer of it or any or all of its assets or revenues nor has any member of the Group sought any other relief under any applicable insolvency or bankruptcy law; | ||
8.2.12 | neither the Guarantor nor any of its assets enjoys any right of immunity from set-off, suit or execution in respect of its obligations under this Deed; | ||
8.2.13 | all the shares in the Borrower and the Manager shall be legally and beneficially owned directly or indirectly by the Guarantor and such structure shall remain so throughout the Security Period. Further, no Event of Default has occurred under Clause 11.2 in respect of the ownership and/or control of the shares in the Guarantor; and | ||
8.2.14 | it has reviewed and agrees to all the terms and conditions of the Loan Agreement and each other Security Document to which any Obligor is or is to be a party. |
8.3 | Semi-continuing representations and warranties The Guarantor represents and warrants to the Beneficiaries that: |
8.3.1 | no event has occurred and remains unremedied which constitutes a default under or in respect of any agreement or document to which the Guarantor is a party or by which it may be bound (including, inter alia, this Deed); | ||
8.3.2 | no litigation, arbitration or administrative proceedings are current or pending or to its knowledge threatened, which might, if adversely determined, have a material adverse effect on the ability of the Guarantor to perform its obligations under this Deed, save as disclosed by the Guarantor in its most recent US Securities Exchange Commission filing; | ||
8.3.3 | to the best of its knowledge, each of the Obligors has complied with all taxation laws in all jurisdictions in which it is subject to Taxation and has paid all Taxes due and payable by it including but without limitation any disputed Taxes unless a sufficient reserve has been made pending resolution of the dispute and no material claims are being asserted against any of the Obligors with respect to Taxes, which might, if such claims were successful, have a material adverse effect on the ability of that Obligor to perform its obligations under the Transaction Documents to which it is a party; and |
9
8.3.4 | the Guarantor does not have a place of business in any jurisdiction which would require this Deed to be filed or registered (if it had a place of business in that jurisdiction) to ensure the validity of this Deed. |
9 | General Undertakings: Positive Covenants |
9.1 | The undertakings contained in this Clause 9 shall remain in full force and effect from the date of this Deed until the end of the Security Period. | ||
9.2 | The Guarantor will provide to the Agent: |
9.2.1 | as soon as practicable (and in any event within one hundred and twenty (120) days after the close of each of its financial years) a Certified Copy of its Accounts (commencing with the audited accounts made up to 31 December 2005); | ||
9.2.2 | as soon as practicable (and in any event within sixty (60) days after the close of each quarter of each financial year) a copy of the unaudited consolidated accounts of the Guarantor for that quarter (commencing with the unaudited accounts made up to 30 June 2006); | ||
9.2.3 | as soon as practicable (and in any event within one hundred and twenty (120) days after the close of each financial year), beginning with the year ending 31 December 2006, annual cash flow projections on a consolidated basis of the Guarantor showing on a monthly basis advance ticket sales (for at least twelve (12) months following the date of such statement) for the Group; and | ||
9.2.4 | as soon as practicable (and in any event not later than 31 January of each financial year): |
(a) | a budget for the Group for such new financial year including a twelve (12) month liquidity budget for such new financial year; and | ||
(b) | updated financial projections of the Group for at least the next five (5) years and an outline of the assumptions supporting such budget and financial projections including but without limitation any scheduled drydrockings; |
9.2.5 | on the date of this Deed, in the case of the first, on the date falling ninety (90) days before the Intended Delivery Date, in the case of the second, and otherwise as soon as practicable (and in any event within sixty (60) days after the close of each of the first three (3) quarters of its financial year and within one hundred and twenty (120) days after the close of each financial year) a statement signed by the Groups chief financial officer in the form of Schedule 1 (commencing with the second quarter of the financial year ending 31 December 2006); | ||
9.2.6 | promptly, such further information in its possession or control regarding its financial condition and operations and those of any company in the Group, including but without limitation a corporate structure chart for the |
10
Group including details of the percentage of the shareholdings held, as the Agent may request for the benefit of the Finance Parties; and | |||
9.2.7 | details of any material litigation, arbitration or administrative proceedings which affect any Obligor as soon as the same are instituted and served, or, to the knowledge of the Guarantor, threatened (and for this purpose proceedings shall be deemed to be material if they involve a claim in an amount exceeding [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] or the equivalent in another currency). |
All accounts required under this Clause 9.2 shall be prepared in accordance with GAAP and shall fairly represent the financial condition of the relevant company. In this Clause 9.2 Group shall have the meaning ascribed to it in Clause 11.4. | |||
9.3 | Subject to the provisions of Clause 11.3, the Guarantor will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received by the Guarantor by way of dividend promptly. | ||
9.4 | The Guarantor will keep proper books of record and account in which proper and correct entries shall be made of all financial transactions and the assets, liabilities and business of the Guarantor in accordance with GAAP. | ||
9.5 | The Guarantor will notify the Agent of any Event of Default forthwith upon the Guarantor becoming aware of the occurrence thereof. | ||
9.6 | The Guarantor will procure that all such authorisations, approvals, consents, licences and exemptions as may be required under any applicable law or regulation to enable it to perform its obligations under, and ensure the validity or enforceability of, this Deed are obtained and promptly renewed from time to time and will promptly furnish certified copies thereof to the Agent upon request and will procure that the terms of the same are complied with at all times. | ||
9.7 | The Guarantor will do all such things as are necessary to maintain its corporate existence in good standing and will ensure that it has the right and is duly qualified to conduct its business as it is conducted in all applicable jurisdictions and will obtain and maintain all franchises and rights necessary for the conduct of its business. |
10 | General Undertakings: Negative Covenants |
10.1 | The undertakings contained in this Clause 10 shall remain in full force from the date of this Deed until the end of the Security Period. | ||
10.2 | Except with the prior written consent of the Agent (acting on the instructions of the Lenders in the case of a sale of the Vessel pursuant to Clause 10.2.1), the Guarantor will not, and will procure that no other member of the Group will, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, agree to or actually sell, assign, abandon or otherwise transfer or dispose of all or any of its assets or any share or interest therein except that: |
11
10.2.1 | the Borrower may agree to sell the Vessel on the condition that contemporaneously with the completion of the sale the Loan is prepaid in accordance with the provisions of clause 11 of the Loan Agreement; | ||
10.2.2 | the Borrower may let the Vessel on charter in accordance with the provisions of clause 10 of the Loan Agreement; | ||
10.2.3 | disposals may be made in the ordinary course of trading of the disposing entity (excluding disposal of ships) including without limitation, the payment of cash as consideration for the purchase or acquisition of any asset or service or in the discharge of any obligation incurred for value in the ordinary course of trading; | ||
10.2.4 | disposals may be made (other than by the Borrower) to another member of the Group; | ||
10.2.5 | disposals of cash raised or borrowed may be made for the purposes for which such cash was raised or borrowed; | ||
10.2.6 | disposals of assets in exchange for other assets comparable or superior as to type and value may be made; and | ||
10.2.7 | a vessel owned by any member of the Group (other than the Borrower) may be sold provided such sale is on a willing seller willing buyer basis at or about market rate and at arms length subject always to the provisions of any loan documentation for the financing of such vessel. |
10.3 | Except with the prior written consent of the Agent, the Guarantor will not, and will procure that no other member of the Group will, make any loan or advance or extend credit to any person, firm or corporation except in the ordinary course of business (in this Clause, Group shall exclude the Borrower). | ||
10.4 | The Guarantor will not, and will procure that no other member of the Group will, issue or enter into any one (1) or more guarantee or indemnity or otherwise become directly or contingently liable for the obligations of any other person, firm or corporation without notifying the Agent promptly thereafter with full details of the amount(s) and the period(s) of the guarantee(s) or indemnity(ies), if such is or are in excess of (in aggregate (if applicable)) the amount of [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]. | ||
10.5 | Except with the prior written consent of the Agent, the Guarantor will not, and will procure that no other member of the Group will, make or threaten to make any substantial change in its business as presently conducted, or carry on any other business which is substantial in relation to its business as presently conducted so as to affect, in the reasonable opinion of the Agent, the ability of the Guarantor or the Borrower to perform its obligations under the Security Documents to which it is a party PROVIDED THAT any new leisure or hospitality venture embarked upon by any member of the Group shall not constitute a substantial change in its business (in this Clause, Group shall exclude the Borrower). | ||
10.6 | The Guarantor and any other member of the Group may enter into any amalgamation, restructure, substantial reorganisation,merger, de-merger, |
12
consolidation, winding-up, dissolution or anything analogous to the foregoing or acquire any equity, share capital or obligations of any corporation or other entity if such entry or acquisition would not: |
10.6.1 | imperil the security created by any of the Security Documents or the Coface Insurance Policy; | ||
10.6.2 | affect the ability of any Obligor duly to perform any of its obligations under any Security Document to which it may be a party at any time; or | ||
10.6.3 | affect the ability of the Guarantor to comply with the financial undertakings contained in Clause 11, |
after any such amalgamation, restructure, substantial reorganisation, merger, de-merger, consolidation, winding-up, dissolution or anything analogous to the foregoing or acquisition of any equity, share capital or obligations of any corporation or other entity (in this Clause, Group shall exclude the Borrower). | |||
10.7 | Except with the prior written consent of the Agent, the Guarantor will not alter its financial year end. | ||
10.8 | The Guarantor has not taken and shall not take from any other Obligor any security or counter-security in respect of any of its obligations under this Deed PROVIDED ALWAYS that if the Guarantor, in breach of this Clause, takes any security or counter-security as aforesaid, such security shall be held by the Guarantor as trustee upon trust for the Beneficiaries. |
11 | Financial Undertakings and Ownership and Control of the Guarantor |
11.1 | The Guarantor will ensure that for the financial quarter ending as at 30 June 2006, for the financial quarter ending immediately prior to or on the date falling ninety (90) days before the Intended Delivery Date and for each subsequent financial quarter: |
11.1.1 | at all times the minimum Free Liquidity will be not less than [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]; | ||
11.1.2 | either: |
(a) | as at the end of each financial quarter the ratio of Consolidated EBITDA to Consolidated Debt Service for the Group, computed for the period of the four (4) consecutive financial quarters ending at the end of the relevant financial quarter, shall not be less than [**] [Confidential Treatment] to [**] [Confidential Treatment]; or | ||
(b) | at all times during the period of twelve (12) months ending as at the end of the relevant financial quarter the Group has maintained a minimum Free Liquidity in an amount which is not less than [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]; and |
11.1.3 | as at the end of each financial quarter the ratio of Total Net Funded Debt to Total Capitalisation of the Group shall not exceed: |
13
(a) | [**] [Confidential Treatment] to [**] [Confidential Treatment] for financial quarters ending on or before 31 December 2007; and | ||
(b) | [**] [Confidential Treatment] to [**] [Confidential Treatment] for each subsequent financial quarter. |
Amounts available for drawing under any revolving or other credit facilities of the Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
11.2 | It will be an Event of Default if: |
11.2.1 | at any time when the ordinary share capital of the Guarantor is not publicly listed on an Approved Stock Exchange or at any time when a dividend is paid to the existing shareholders of the Guarantor by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Lim Family together or individually do not, directly or indirectly, control the Guarantor and beneficially own, directly or indirectly, at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or | ||
11.2.2 | at any time following the listing of the ordinary share capital of the Guarantor on an Approved Stock Exchange: |
(a) | any individual or any Third Party: |
(i) | owns legally and/or beneficially and either directly or indirectly at least [**] [Confidential Treatment] per cent [**] [Confidential Treatment] of the ordinary share capital of the Guarantor; or | ||
(ii) | has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the Guarantor; |
and, at the same time as any of the events described in paragraphs (i) or (ii) of this Clause has occurred and remains unremedied, the Lim Family together or individually do not, directly or indirectly, beneficially own at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Guarantor; or |
(b) | the Guarantor ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Agent, |
(and, for the purpose of this Clause 11.2.2
control
of any company, limited
partnership or other legal entity (a
body
corporate
) by a member of the Lim
Family, means that one (1) or more members of the Lim Family has, directly or
indirectly, the power to direct the management and policies of such a body
corporate, whether through the ownership of more than fifty per cent (50%) of the
issued voting capital of that body corporate or by contract, trust or other
arrangement).
|
14
11.4.1 | Affiliate means, with respect to any person, any other person controlling, controlled by or under common control with, such person and for purposes of this definition, control (including, with correlative meanings, the terms controlling, controlled by and under common control with), as applied to any person, means the possession, directly or indirectly, of the power to vote ten per cent (10%) or more of the securities having voting power for the election of directors of such person, or otherwise to direct or cause the direction of the management and policies of that person, whether through the ownership of voting securities or by contract or otherwise; | ||
11.4.2 | Approved Stock Exchange means the New York Stock Exchange, NASDAQ or such other stock exchange in the United States of America as is approved in writing by the Agent; | ||
11.4.3 | Cash Balance means, at any date of determination, the unencumbered and otherwise unrestricted cash and cash equivalents of the Group; | ||
11.4.4 | Consolidated Debt Service means, for any relevant period, the sum (without double counting), determined in accordance with GAAP, of: |
(a) | the aggregate principal payable or paid during such period on any Indebtedness of any member of the Group, other than: |
(i) | principal of any such Indebtedness prepaid at the option of the relevant member of the Group; | ||
(ii) | principal of any such Indebtedness prepaid upon the sale or Total Loss of any vessel owned or leased under a capital lease by any member of the Group; and | ||
(iii) | balloon payments of any such Indebtedness payable during such period (and for the purpose of this paragraph (iii) a balloon payment shall not include any |
15
scheduled repayment instalment of such Indebtedness which forms part of the balloon); |
(b) | Consolidated Interest Expense for such period; |
(c) | the aggregate amount of any dividend or distribution of present or future assets, undertakings, rights or revenues to any shareholder of any member of the Group (other than the Guarantor or one of its wholly owned Subsidiaries) or any distribution in respect of share capital during such period (Distributions) ; and | ||
(d) | all rent under any capital lease obligations by which the Guarantor or any consolidated Subsidiary is bound which are payable or paid during such period and the portion of any debt discount that must be amortised in such period, |
as calculated in accordance with GAAP and derived from the then latest unaudited consolidated accounts of the Guarantor delivered to the Agent in the case of any period ending at the end of any of the first three (3) financial quarters of each financial year of the Guarantor and the then latest Accounts delivered to the Agent in the case of the final quarter of each such financial year; |
11.4.5 | Consolidated EBITDA means, for any relevant period, the aggregate of: |
(a) | Consolidated Net Income from the Guarantors operations for such period; and | ||
(b) | the aggregate amounts deducted in determining Consolidated Net Income for such period in respect of gains and losses from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortisation, impairment charges and any other non-cash charges and deferred income tax expense for such period; |
11.4.6 | Consolidated Interest Expense means, for any relevant period, the consolidated interest expense (excluding capitalised interest) of the Group for such period; | ||
11.4.7 | Consolidated Net Income means, for any relevant period, the consolidated net income (or loss) of the Group for such period as determined in accordance with GAAP; | ||
11.4.8 | Free Liquidity means, at any date of determination, the aggregate of the Cash Balance and any amounts freely available for drawing under any revolving or other credit facilities of the Group, which remains undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six (6) months; |
16
11.4.9 | Group means, for the purposes of this Clause 11, the Guarantor, its Subsidiaries and any other entity which is required to be consolidated in the Guarantors accounts in accordance with GAAP; | ||
11.4.10 | Indebtedness means Financial Indebtedness (whether present or future, actual or contingent, long-term or short-term, secured or unsecured) in respect of: |
(a) | moneys borrowed or raised; | ||
(b) | the advance or extension of credit (including interest and other charges on or in respect of any of the foregoing); | ||
(c) | the amount of any liability in respect of leases which, in accordance with GAAP, are capital leases; | ||
(d) | the amount of any liability in respect of the purchase price for assets or services payment of which is deferred for a period in excess of one hundred and eighty (180) days; | ||
(e) | all reimbursement obligations whether contingent or not in respect of amounts paid under a letter of credit or similar instrument; and | ||
(f) | (without double counting) any guarantee of Financial Indebtedness falling within paragraphs (a) to (e) above; |
PROVIDED THAT the following shall not constitute Indebtedness: |
(i) | loans and advances made by other members of the Group which are subordinated to the rights of the Finance Parties; | ||
(ii) | loans and advances made by the Guarantors parent company which are subordinated to the rights of the Finance Parties; and | ||
(iii) | any liabilities of the Guarantor or any other member of the Group to a counterparty under any master agreement relating to the interest or currency exchange transactions of a non-speculative nature. |
11.4.11 | Lim Family means: |
(a) | Tan Sri Lim Goh Tong; | ||
(b) | his spouse; | ||
(c) | his direct lineal descendants; | ||
(d) | the personal estate of any of the above persons; and | ||
(e) | any trust created for the benefit of one or more of the above persons and their estates; |
11.4.12 | Third Party means any person or group of persons acting in concert (as the expression acting in concert is defined in the City Code on |
17
Take-overs and Mergers) who or which is not a member of the Lim Family; |
11.4.13 | Total Capitalisation means, at any date of determination, Total Net Funded Debt plus the consolidated stockholders equity of the Group at such date determined in accordance with GAAP and derived from the then latest unaudited and consolidated accounts of the Guarantor delivered to the Agent in the case of the first three (3) quarters of each financial year and the then latest Accounts delivered to the Agent in the case of the final quarter of each financial year; | ||
11.4.14 | Total Net Funded Debt means, as at any relevant date: |
(a) | Indebtedness of the Group; and | ||
(b) | the amount of any Indebtedness of any person which is not a member of the Group but which is guaranteed by a member of the Group as at such date; |
less an amount equal to any Cash Balance as at such date. |
11.5 | Save as specified in Clause 11.1.2, the ratios referred to in Clause 11.1 will be measured on a quarterly basis by reference to the consolidated accounts of the Guarantor. |
12 | Discharge |
12.1 | Subject to Clause 4.3, following the irrevocable repayment or payment to the Lenders or the Agent (for itself and on behalf of the Lenders) of all the Outstanding Indebtedness the Beneficiaries will at the Guarantors request return this Deed to the Guarantor and shall, at the request and cost of the Guarantor, transfer to the Guarantor such rights as the Beneficiaries may at such time have in the security for the Outstanding Indebtedness and to the proceeds of any such rights or security. |
13 | Assignment and Transfer |
13.1 | This Deed shall be binding upon and enure to the benefit of the Beneficiaries and their successors and permitted assigns and transferees. | ||
13.2 | The Guarantor shall not be entitled to assign or transfer all or any part of its rights, benefits or obligations under this Deed. | ||
13.3 | The Lenders and/or the Agent may transfer their respective rights hereunder to any person to whom their respective rights and obligations under the Loan Agreement are transferred in accordance with the Loan Agreement. | ||
13.4 | Any Finance Party may disclose to any of its Affiliates and to the following other persons: |
(a) | any person to (or through) whom that Lender assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this Deed; |
18
(b) | any person with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Deed or any Obligor; | ||
(c) | any person to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation; | ||
(d) | any other Finance Party, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; | ||
(e) | Coface, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; | ||
(f) | the Guarantor or any other member of the Group, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such persons employ or duties; or | ||
(g) | auditors, insurance and reinsurance brokers, insurers and reinsurers and professional advisers, including legal advisers, which need to know such information, |
any information about any Obligor, this Deed and the other Security Documents as that Finance Party shall consider appropriate. Each of the Finance Parties may also disclose to the Builder, or any employee, officer, director or representative of the Builder which needs to know such information or receive such document in the course of such persons employ or duties, such information about any Obligor, this Deed and the other Security Documents as that Finance Party reasonably considers normal practice for a French export credit. | |||
Each of the Finance Parties acknowledges that all information received now or in the future from or on behalf of the Obligors under or pursuant to or in connection with the Transaction Documents or the Coface Insurance Policy (other than any information which is in the public domain other than as a result of a breach of this Clause) is confidential information and undertakes to advise this fact to any recipient of any such information under this Clause. |
13.5 | A person (including any body of persons) who is not a party to this Deed has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Deed but this does not affect any right or remedy of a third party which exists or is available apart from that Act. |
14 | Miscellaneous Provisions |
14.1 | No failure to exercise and no delay in exercising on the part of the Beneficiaries or any of the other Finance Parties any right or remedy under this Deed or under any other of the Security Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. No waiver by the |
19
Beneficiaries or any of the other Finance Parties shall be effective unless it is in writing. |
14.2 | The rights and remedies of the Finance Parties provided herein and in the other Security Documents are cumulative and not exclusive of any rights or remedies provided by law. | ||
14.3 | If any provision of this Deed or the Loan Agreement or any other Security Document to which any Obligor is a party is prohibited or unenforceable in any jurisdiction, such prohibition or unenforceability shall not invalidate the remaining provisions hereof or thereof or affect the validity or enforceability of such provision in any other jurisdiction. | ||
14.4 | Time is of the essence in respect of all of the obligations of the Guarantor under this Deed. |
15 | Waiver of Immunity |
15.1 | The Guarantor irrevocably and unconditionally: |
15.1.1 | waives any right of immunity which it or its assets now has or may hereafter acquire in relation to any legal proceedings (including, but without limitation, actions in rem and/or in personam) brought against it or its assets by the Beneficiaries in relation to this Deed; and | ||
15.1.2 | consents generally in respect of any such proceedings to the giving of any relief including, without limitation, the issue of any process in connection with such proceedings and the making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgment which may be made or given in such proceedings. |
16 | Notices |
16.1 | Each notice, demand or other communication to be made under this Deed shall be made in writing which, unless otherwise stated, includes telefax. | ||
16.2 | Any notice, demand or other communication to be made or delivered by the Agent to the Guarantor pursuant to this Deed shall (unless the Guarantor has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Guarantor at 7665 Corporation Center Drive, Miami, Florida 33126, United States of America marked for the attention of Ms Bonnie Biumi (telefax no. +1 305 436 4140) and the Legal Department (telefax no. +1 305 436 4117) and shall be deemed to have been made or delivered (in the case of telefax) when transmission of such telefax communication has been completed or (in the case of any letter) when delivered to the aforesaid address or (as the case may be) five (5) days after being deposited in the post first class postage prepaid in an envelope addressed to it at that address. Any notice, demand or other communication to be made or delivered by the Guarantor to the Agent pursuant to this Deed shall (unless the Agent has by fifteen (15) days written notice to the Guarantor specified another address) be made or delivered to the Agent (for itself and on behalf of the Lenders) at its office for the time being which is at present at BNP Paribas, ECEP/Export Finance, ACI:CHDESAl, 37 Place du Marche Saint-Honore, 75031 Paris Cedex 01, France marked for the attention of |
20
Mrs Dominique Laplasse (telefax no. +33 1 43 16 81 84) and shall be deemed to have been made or delivered (in the case of telefax) when transmission of such telefax communication has been completed or (in the case of any letter) when delivered to the aforesaid address or (as the case may be) five (5) days after being deposited in the post first class postage prepaid in an envelope addressed to it at that address. | |||
16.3 | Each notice, demand or other communication made or delivered by one (1) party to the other pursuant to this Deed shall be in the English language or accompanied by a certified English translation. |
17 | Governing Law |
This Deed shall be governed by and construed in accordance with the laws of England. |
18 | Jurisdiction |
18.1 |
The courts of England have exclusive jurisdiction to settle any dispute arising out
of or in connection with this Deed (including a dispute regarding the existence,
validity or termination of this Deed) (a
Dispute).
Each party to this Deed
agrees that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no party will argue to the contrary.
This Clause 18.1 is for the benefit of the Beneficiaries only. As a result, such party shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, such party may take concurrent proceedings in any number of jurisdictions. |
||
18.2 | The Guarantor may not, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Guarantor shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Guarantors process agent with unconditional authority to receive and acknowledge service on behalf of the Guarantor of all process or other documents connected with proceedings in the English courts which relate to this Deed. | ||
18.3 | For the purpose of securing its obligations under Clause 18.2, the Guarantor irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 18.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Guarantors process agent in England with the unconditional authority described in Clause 18.2. | ||
18.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Guarantor of the service of any process or to forward any process to the Guarantor) shall invalidate any proceedings or judgment. | ||
18.5 | The Guarantor appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Deed. |
21
18.6 | A judgment relating to this Deed which is given or would be enforced by an English court shall be conclusive and binding on the Guarantor and may be enforced without review in any other jurisdiction. | ||
18.7 | Nothing in this Clause shall exclude or limit any right which the Beneficiaries, may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | ||
18.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Colin Veitch | ||||||
for and on behalf of
|
) | |||||||
NCL CORPORATION LTD.
|
) | |||||||
acting by Colin Veitch
|
) | |||||||
its duly appointed attorney-in-fact
|
) | |||||||
in the presence of:
|
Paul Alan Turner | ) | ||||||
|
PAUL ALAN TURNER | ) | ||||||
|
SOLICITOR, CLIFFORD CHANCE LLP | |||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Signature Illegible | ||||||
for and on behalf of
|
) | |||||||
BNP PARIBAS
|
) | |||||||
as a Lender Sandrine FERDANE
|
) | |||||||
acting by Jean-Daniel AMSLER
|
) | |||||||
its duly appointed AUTHORIZED SIGNATORIES
|
) | |||||||
in the presence of:
|
Jean Philippe POIRIER | ) | ||||||
|
MANAGER, BNP PARIBAS | |||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Signature Illegible | ||||||
for and on behalf of
|
) | |||||||
CALYON
|
) | |||||||
acting by Jerome LEBLOND
|
) | |||||||
its duly appointed attorney-in-fact
|
) | |||||||
in the presence of:
|
Jean Philippe POIRIER | ) | ||||||
|
MANAGER, BNP PARIBAS |
22
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Signature Illegible | ||||||
for and on behalf of
|
) | |||||||
HSBC FRANCE Gilles PINOT
|
) | |||||||
acting by Erick DADAT
|
) | |||||||
its duly appointed Authorized Signatories
|
) | |||||||
in the presence of:
|
Jean Philippe POIRIER | ) | ||||||
|
MANAGER, BNP PARIBAS | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Signature Illegible | ||||||
for and on behalf of
|
) | |||||||
SOCIETE GENERALE
Isabella GUILLOU
|
) | |||||||
acting by Deputy Global Head of Export Finance
|
) | |||||||
its duly appointed Authorized Signatory
|
) | |||||||
in the presence of:
|
Jean Philippe POIRIER | ) | ||||||
|
MANAGER, BNP PARIBAS | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Signature Illegible | ||||||
for and on behalf of
|
) | |||||||
BNP PARIBAS
|
) | |||||||
as
the Agent Sandrine FERDANE
|
) | |||||||
acting
by Jean-Daniel AMSLER
|
) | |||||||
its duly appointed AUTHORIZED SIGNATORIES
|
) | |||||||
in the presence of:
|
Jean Philippe POIRIER | ) | ||||||
|
MANAGER, BNP PARIBAS | ) |
23
TO:
|
BNP PARIBAS | |
|
ECEP/Export Finance | |
|
ACI:CHDESA1 | |
|
37 Place du Marché Saint-Honoré | |
|
75031 Paris Cedex 01 | |
|
France | |
|
||
|
Attn: Mrs Dominique Laplasse | |
|
||
|
(as the Agent (as such term is defined in the Guarantee (as hereinafter defined)) |
|
||
Chief Financial Officer
|
||
|
||
Dated: 20[ ]
|
24
Clause (of | ||||||
Guarantee) | As of [ ] | Required Covenants | ||||
11.1.1/
|
Free Liquidity | A | A>[**] [Confidential Treatment] | |||
11.1.2(b)** [Confidential Treatment]
|
(11.1.1)** [Confidential Treatment] | |||||
|
A>[**] [Confidential Treatment] | |||||
|
(11.1.2(b))** [Confidential Treatment] | |||||
11.1.2(a)
|
Consolidated EBITDA: | B | >[**] [Confidential Treatment] | |||
|
||||||
|
Consolidated Debt Service | C | ||||
|
||||||
11.1.3
|
Total Net Funded Debt: | D | <[**] [Confidential Treatment] up to | |||
|
31 December 2007<[**] [Confidential Treatment] thereafter | |||||
|
||||||
|
Total Capitalisation | E | ||||
|
||||||
|
Consolidated EBITDA | |||||
|
Consolidated Net Income (loss) | x | ||||
(Deduct)/Add:
|
(Gain)/Loss on sale of assets or reserves | x | ||||
Add:
|
Consolidated Interest Expense | x | ||||
Add:
|
Depreciation and amortisation of assets | x | ||||
Add:
|
Impairment charges | x | ||||
(Deduct)/Add:
|
Other non-recurring charge (gain) | x | ||||
Add:
|
Deferred income tax expense | x | ||||
|
Consolidated EBITDA | x B | ||||
|
Consolidated Debt Service | |||||
|
Principal paid/payable (excluding balloon | |||||
|
payments, voluntary prepayments/repayments | x | ||||
|
on sale/total loss of an NCLC Fleet Vessel) | |||||
Add:
|
Consolidated Interest Expense | x | ||||
|
Distributions | x | ||||
|
Rent under capitalised leases | x | ||||
|
Consolidated Debt Service | x C | ||||
|
Total Net Funded Debt | |||||
|
Indebtedness | x | ||||
Add:
|
Guarantees of non-NCLC Group members obligations | |||||
|
x | |||||
|
||||||
Deduct:
|
Cash Balance | (x) | ||||
|
Total Net Funded Debt | (x) D | ||||
|
Total Capitalisation | |||||
|
Total Net Funded Debt | x | ||||
Add:
|
Consolidated stockholders equity | x | ||||
|
Total Capitalisation | x E |
25
|
|
||
Chief Financial Officer
|
||
NCL CORPORATION LTD.
|
||
Dated:
|
20[ ] |
** | Evidence satisfactory to the Agent of A at all times during the relevant period shall be provided together with this statement |
26
Name | Registered Address | Registered Number with the | ||
Registry of Trade and | ||||
Companies | ||||
BNP PARIBAS
|
16 boulevard des Italiens, | 662 042 449 (RCS Paris) | ||
(as Agent and Lender)
|
75009 Paris, France | |||
|
||||
CALYON
|
9 quai du Président Paul | 304 187 701 (RCS Nanterre) | ||
(as Lender)
|
Doumer, 92920 Paris La Défense
Cedex, France |
|||
|
||||
HSBC FRANCE
|
103 avenue des Champs | 775 670 284 (RCS Paris) | ||
(as Lender)
|
Elysées, 75419 Paris, Cedex 08,
France |
|||
|
||||
SOCIETE GENERALE
|
29 boulevard Haussmann, | 552 120 222 (RCS Paris) | ||
(as Lender)
|
75009 Paris, France | |||
|
||||
each a French société anonyme |
27
Page | ||||||||||
1 | Definitions and Construction | 1 | ||||||||
|
1.1 | Definitions | 1 | |||||||
|
1.2 | Construction | 15 | |||||||
|
1.3 | Agent | 16 | |||||||
|
1.4 | Third Party rights | 16 | |||||||
|
||||||||||
2 | The Facility | 16 | ||||||||
|
2.1 | Availability | 16 | |||||||
|
2.2 | Purpose and Application | 17 | |||||||
|
2.3 | Advance of a Revolving Credit Facility Drawing to the Borrower | 17 | |||||||
|
2.4 | Advance of a Swingline Facility Drawing to the Borrower | 17 | |||||||
|
2.5 | Break costs | 18 | |||||||
|
2.6 | Conditions of drawdown | 18 | |||||||
|
2.7 | Several obligations of the Lenders | 19 | |||||||
|
2.8 | Lenders failure to perform | 19 | |||||||
|
2.9 | Fulfilment of conditions after drawdown | 19 | |||||||
|
||||||||||
3 | Repayment, Reduction, Cancellation and Prepayment of the Facility | 19 | ||||||||
|
3.1 | Repayment | 19 | |||||||
|
3.2 | Scheduled reductions of Commitments to the Facility | 20 | |||||||
|
3.3 | Sale or Total Loss of a Vessel: mandatory cancellation | 20 | |||||||
|
3.4 | Amounts payable on prepayment | 20 | |||||||
|
3.5 | Notice of prepayment | 21 | |||||||
|
3.6 | Voluntary cancellation of Commitments | 21 | |||||||
|
3.7 | Additional partial cancellation | 22 | |||||||
|
3.8 | Prepayment during Term | 22 | |||||||
|
3.9 | Mandatory cancellation in case of illegality | 22 | |||||||
|
3.10 | Voluntary cancellation following imposition of Substitute Basis | 23 | |||||||
|
3.11 | Cancellation in case of Total Loss of a Vessel | 23 | |||||||
|
3.12 | Cancellation in case of sale of a Vessel | 23 | |||||||
|
||||||||||
4 | Interest | 24 | ||||||||
|
4.1 | Payment of interest | 24 | |||||||
|
4.2 | Selection and duration of Interest Periods | 24 | |||||||
|
4.3 | No notice and unavailability | 24 | |||||||
|
4.4 | Extension and shortening of Interest Periods | 24 | |||||||
|
4.5 | Interest Rate | 25 | |||||||
|
4.6 | Bank basis | 25 | |||||||
|
4.7 | Default interest | 25 | |||||||
|
||||||||||
5 | Swingline Facility | 26 | ||||||||
|
5.1 | Swingline Lenders participation | 26 | |||||||
|
5.2 | Relationship with the Revolving Credit Facility | 26 | |||||||
|
5.3 | Reallocation | 26 |
Page | ||||||||||
6 | Substitute Basis of Funding | 27 | ||||||||
|
6.1 | Market disturbance | 27 | |||||||
|
6.2 | Suspension of drawdown | 28 | |||||||
|
6.3 | Certificates of Substitute Basis | 28 | |||||||
|
6.4 | Review | 28 | |||||||
|
||||||||||
7 | Payments | 29 | ||||||||
|
7.1 | Place for payment | 29 | |||||||
|
7.2 | Deductions and grossing-up | 29 | |||||||
|
7.3 | Production of receipts for Taxes | 30 | |||||||
|
7.4 | Currency of account | 30 | |||||||
|
7.5 | Money of account | 30 | |||||||
|
7.6 | Accounts | 31 | |||||||
|
7.7 | Earnings | 31 | |||||||
|
7.8 | Continuing security | 31 | |||||||
|
7.9 | Mitigation | 32 | |||||||
|
||||||||||
8 | Yield Protection and Force Majeure | 32 | ||||||||
|
8.1 | Increased costs | 32 | |||||||
|
8.2 | Force Majeure | 33 | |||||||
|
||||||||||
9 | Representations and Warranties | 34 | ||||||||
|
9.1 | Duration | 34 | |||||||
|
9.2 | Representations and warranties | 34 | |||||||
|
||||||||||
10 | Undertakings | 39 | ||||||||
|
10.1 | Duration | 39 | |||||||
|
10.2 | Information | 39 | |||||||
|
10.3 | Financial Undertakings | 40 | |||||||
|
10.4 | Dividends | 41 | |||||||
|
10.5 | Notification of default | 41 | |||||||
|
10.6 | Consents and registrations | 41 | |||||||
|
10.7 | Negative pledge | 42 | |||||||
|
10.8 | Disposals | 42 | |||||||
|
10.9 | Purchases | 42 | |||||||
|
10.10 | Change of name or business | 42 | |||||||
|
10.11 | Mergers | 43 | |||||||
|
10.12 | Maintenance of status and franchises | 43 | |||||||
|
10.13 | Financial records | 44 | |||||||
|
10.14 | Subordination of indebtedness | 44 | |||||||
|
10.15 | Guarantees | 44 | |||||||
|
10.16 | Further assurance | 44 | |||||||
|
10.17
10.18 |
Valuation of the Vessels
Marginal security |
44
45 |
|||||||
|
10.19 | No dealings with Master Agreements | 45 | |||||||
|
10.20 | Financial year end | 46 | |||||||
|
10.21 | Maintenance and insurance | 46 | |||||||
|
10.22 | Vessels | 46 |
Page | ||||||||||
11 | Rights of the Agent and the Lenders | 46 | ||||||||
|
11.1 | No derogation of rights | 46 | |||||||
|
11.2 | Enforcement of remedies | 46 | |||||||
|
||||||||||
12 | Default | 47 | ||||||||
|
12.1 | Events of default | 47 | |||||||
|
12.2 | Acceleration | 52 | |||||||
|
12.3 | Default indemnity | 53 | |||||||
|
12.4 | Set off | 53 | |||||||
|
12.5 | Master Agreement rights | 54 | |||||||
|
||||||||||
13 | Application of Funds | 54 | ||||||||
|
13.1 | Total Loss proceeds/proceeds of sale | 54 | |||||||
|
13.2 | General funds/Event of Default monies | 55 | |||||||
|
13.3 | Application of proceeds of Insurances | 56 | |||||||
|
13.4 | Suspense account | 56 | |||||||
|
||||||||||
14 | Fees | 57 | ||||||||
|
14.1 | Commitment fee | 57 | |||||||
|
14.2 | Other fees | 57 | |||||||
15
|
Expenses | 57 | ||||||||
|
15.1 | Initial expenses | 57 | |||||||
|
15.2 | Enforcement expenses | 57 | |||||||
|
15.3 | Stamp duties | 57 | |||||||
|
||||||||||
16 | Waivers, Remedies Cumulative | 58 | ||||||||
|
16.1 | No waiver | 58 | |||||||
|
16.2 | Remedies cumulative | 58 | |||||||
|
16.3 | Severability | 58 | |||||||
|
16.4 | Time of essence | 58 | |||||||
|
||||||||||
17 | Counterparts | 58 | ||||||||
|
||||||||||
18 | Changes to the Lenders | 58 | ||||||||
|
18.1 | Assignments and transfers by the Lenders | 58 | |||||||
|
18.2 | Conditions of assignment or transfer | 59 | |||||||
|
18.3 | Assignment or transfer fee | 60 | |||||||
|
18.4 | Limitation of responsibility of Existing Lenders | 60 | |||||||
|
18.5 | Procedure for transfer | 60 | |||||||
|
18.6 | Copy of Transfer Certificate to Borrower | 61 | |||||||
|
18.7 | Disclosure of information | 61 | |||||||
|
18.8 | Borrowers co-operation | 62 | |||||||
|
||||||||||
19 | Changes to the Borrower | 62 | ||||||||
|
||||||||||
20 | Reference Banks and Agent | 62 | ||||||||
|
20.1 | Reference Banks | 62 | |||||||
|
20.2 | Decision making | 62 |
Page | ||||||||||
|
20.3 | The Agent | 64 | |||||||
|
20.4 | Retirement and replacement of the Agent | 68 | |||||||
|
||||||||||
21 | Notices | 69 | ||||||||
|
21.1 | Mode of communication | 69 | |||||||
|
21.2 | Address | 69 | |||||||
|
21.3 | Telefax communication | 69 | |||||||
|
21.4 | Electronic mail | 70 | |||||||
|
21.5 | Receipt | 71 | |||||||
|
21.6 | Language | 71 | |||||||
|
||||||||||
22 | Governing Law | 71 | ||||||||
|
||||||||||
23 | Waiver of Immunity | 71 | ||||||||
|
||||||||||
24 | Jurisdiction | 71 | ||||||||
|
||||||||||
Schedule 1 Particulars of Agent, Mandated Lead Arrangers and Original Lenders | 75 | |||||||||
|
||||||||||
Schedule 2 Notice of Drawdown | 79 | |||||||||
|
||||||||||
Schedule 3 Conditions Precedent | 81 | |||||||||
|
||||||||||
Schedule 4 Confidentiality Undertaking | 86 | |||||||||
|
||||||||||
Schedule 5 Transfer Certificate | 89 | |||||||||
|
||||||||||
Schedule 6 Quarterly Statement of Financial Covenants | 94 |
(1) | NCL CORPORATION LTD. a company organised and existing under the laws of Bermuda with its registered office at Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda as borrower (the Borrower ); | |
(2) | THE SEVERAL BANKS particulars of which are set out in Schedule 1 as mandated lead arrangers and underwriters (collectively the Mandated Lead Arrangers and each individually a Mandated Lead Arranger ); | |
(3) | THE SEVERAL BANKS particulars of which are set out in Schedule 1 as lenders (collectively the Original Lenders and each individually an Original Lender and including, unless the context otherwise requires, the Swingline Lender); and | |
(4) | DnB NOR BANK ASA of Stranden 21, NO-0021 Oslo, Norway as agent (the Agent ). |
1 | Definitions and Construction |
1.1 | Definitions | ||
In this Agreement: | |||
Accounts means the audited consolidated profit and loss account and balance sheet (including all additional information and notes thereto) of the Borrower and its consolidated Subsidiaries together with the auditors report; | |||
Advance Date , in relation to any Drawing, means the date on which that Drawing is advanced to the Borrower pursuant to Clause 2.3 or Clause 2.4 and applied in accordance with the relevant part of Clause 2.2; | |||
Affiliate means, with respect to any person, any other person controlling, controlled by or under common control with, such person and for purposes of this definition, control (including, with correlative meanings, the terms controlling , controlled by and under common control with ), as applied to any person, means the possession, directly or indirectly, of the power to vote ten per cent (10%) or more of the securities having voting power for the election of directors of such person, or otherwise to direct or cause the direction of the |
management and policies of that person, whether through the ownership of voting securities or by contract or otherwise; | |||
Agreement means this agreement; | |||
Applicable Margin means, in respect of a Drawing or the commitment fee payable pursuant to Clause 14.1, the rate per annum set out in the table below determined on the Quotation Date for the relevant Interest Period in the case of a Drawing and on the relevant payment date in respect of the said commitment fee based on the ratio of Total Funded Debt to Consolidated EBITDA for the period of the four (4) consecutive financial quarters ending at the end of the previous financial quarter for which the Agent has received, or should have received, accounts: |
Total Funded Debt : | Applicable Margin | |
Consolidated EBITDA | ||
[**] [Confidential Treatment]
|
One point five per cent (1.50%) | |
[**] [Confidential Treatment]
|
[**] [Confidential Treatment] | |
[**] [Confidential Treatment]
|
[**] [Confidential Treatment] | |
[**] [Confidential Treatment]
|
[**] [Confidential Treatment] |
PROVIDED THAT the highest rate appearing in the table above shall apply if the accounts required to determine the Applicable Margin have not been received by the Agent; | |||
Approved Stock Exchange means the New York Stock Exchange, NASDAQ or such other stock exchange in the United States of America as is approved in writing by the Agent (acting on the instructions of the Majority Lenders); | |||
Associated Company in relation to any company, means any company which is a Subsidiary or Holding Company of that company or the majority of whose shares are beneficially owned by the same person or persons as own the majority of the shares of that company; | |||
Availability Period means the period beginning on the Signing Date and ending one (1) month before the Final Maturity Date; | |||
Available Commitment means, in relation to a Lender, the amount of its Commitment in respect of the Revolving Credit Facility or the Swingline Facility (as the case may be) less the amount of its Contribution to the Revolving Credit Facility or the Swingline Facility (as the case may be); | |||
Business Day means any day on which banks and financial markets in London, Oslo, Frankfurt am Main and New York are open for the transaction of business of the nature contemplated by this Agreement; | |||
Cash Balance means, at any date of determination, the unencumbered and otherwise unrestricted cash and cash equivalents of the NCLC Group; |
2
Certified Copy means, in relation to any document delivered or issued by or on behalf of any company, a copy of such document certified as a true, complete and up-to-date copy of the original by any of the directors or the secretary or assistant secretary or an attorney-in-fact for the time being of that company; | |||
Charges means the two (2) valid and effective first priority shares charges one (1) to be executed in respect of each of the Owners by the Shareholder as holder (legally and beneficially) of all the authorised and issued shares in the relevant Owner in favour of the Agent such charges to be in the form and on the terms and conditions agreed between the Lenders and the Borrower and as specified in paragraph 24 of Schedule 3; | |||
Commitment means, as to each Original Lender and the Swingline Lender, the sums set out opposite its name in Schedule 1 as the amount respectively of the Revolving Credit Facility and the Swingline Facility which, subject to the terms of this Agreement, it is obliged to advance to the Borrower under Clause 2 (or, where the context so admits, such amount which any successor in title, assignee or transferee (including any Transferee) of any Original Lender or Lender or the Swingline Lender shall be obliged to advance to the Borrower under Clause 2, following the assumption of all or any portion of such liability from any Original Lender or Lender or the Swingline Lender hereunder) in each case as such amount may be reduced, cancelled or terminated under this Agreement; | |||
Commitment Period means the period beginning on the Signing Date and ending on the earlier of the last day of the Availability Period and the date on which the Facility is cancelled hereunder; | |||
Compulsory Acquisition means requisition for title or other compulsory acquisition of a Vessel including its capture, seizure, detention or confiscation or expropriation but excluding any requisition for hire by or on behalf of any government or governmental authority or agency or by any persons acting or purporting to act on behalf of any such government or governmental authority or agency; | |||
Confidentiality Undertaking means the undertaking to be entered into relating to the release of financial information pertaining to the NCLC Group by the Agent or any Lender to a potential Transferee or assignee such undertaking to be in the form of Schedule 4; | |||
Confirmation means a Confirmation exchanged or deemed to be exchanged between a Lender or its Affiliate (as the case may be) and the Borrower as contemplated by the relevant Master Agreement; | |||
Consolidated Debt Service means, for any relevant period, the sum (without double counting), determined in accordance with US GAAP, of: |
(i) | the aggregate principal payable or paid during such period on any Indebtedness for Borrowed Money of any member of the NCLC Group, other than: |
(a) | principal of any such Indebtedness for Borrowed Money prepaid at the option of the relevant member of the NCLC Group; | ||
3
(b) |
principal of any such Indebtedness for
Borrowed Money prepaid upon the sale or Total Loss of any vessel
owned or leased under a capital lease by any member of the NCLC
Group; and
|
||
(c) | balloon payments of any such Indebtedness for Borrowed Money payable during such period (and for the purpose of this paragraph (c) a balloon payment shall not include any scheduled repayment instalment of such Indebtedness for Borrowed Money which forms part of the balloon); |
(ii) | Consolidated Interest Expense for such period; | |
(iii) | the aggregate amount of any dividend or distribution of present or future assets, undertakings, rights or revenues to any shareholder of any member of the NCLC Group (other than the Borrower or one of its wholly owned Subsidiaries) or any distribution in respect of share capital during such period ( Distributions ); and | |
(iv) | all rent under any capital lease obligations by which the Borrower or any consolidated Subsidiary is bound which are payable or paid during such period and the portion of any debt discount that must be amortised in such period, |
(i) | Consolidated Net Income from the Borrowers operations for such period; and | |
(ii) | the aggregate amounts deducted in determining Consolidated Net Income for such period in respect of gains and losses from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortisation, impairment charges and any other non-cash charges and deferred income tax expense for such period; |
4
5
(i) | moneys borrowed or raised; | |
(ii) | the advance or extension of credit (including interest and other charges on or in respect of any of the foregoing); | |
(iii) | the amount of any liability in respect of leases which, in accordance with US GAAP, are capital leases; | |
(iv) | the amount of any liability in respect of the purchase price for assets or services payment of which is deferred for a period in excess of one hundred and eighty (180) days; |
6
(v) | all reimbursement obligations whether contingent or not in respect of amounts paid under a letter of credit or similar instrument; and | |
(vi) | (without double counting) any guarantee of Financial Indebtedness falling within paragraphs (i) to (v) above; |
(a) | loans and advances made by other members of the NCLC Group which are subordinated to the rights of the Lenders; | |
(b) | loans and advances made by Star Cruises Limited which are subordinated to the rights of the Lenders; and | |
(c) | any Master Agreement Liabilities and any similar liabilities of the Borrower or any other member of the NCLC Group to a counterparty under any other master agreement relating to interest or currency exchange transactions of a non-speculative nature; |
(i) | the offered rate for deposits in Dollars for a period equivalent to such Interest Period which appears on the Reuters BBA Page LIBOR 01 at or about 11.00 a.m. London time on the Quotation Date; or |
7
(ii) | if no rate is provided for the respective Interest Period on the Reuters BBA Page LIBOR 01, the interpolated rate per annum for deposits in Dollars in an amount approximately equal to the Revolving Credit Facility Drawing as calculated by the Agent, such interpolated rate to be based on the Reuters BBA Page LIBOR 01 PROVIDED THAT LIBOR for periods of less than one (1) week will be ascertained under sub-section (iii) below; |
(iii) | the arithmetic mean (rounded upwards, if necessary, to the nearest one-sixteenth of one per cent (1/16%)) of the rates per annum notified to the Agent by each of the Reference Banks as the rate at which deposits in Dollars in an amount approximately equal to the Revolving Credit Facility Drawing are offered to such Reference Bank by leading banks in the London Interbank Market at such Reference Banks request at or about 11.00 a.m. London time on the Quotation Date for a period equal to the Interest Period and for delivery on the first Business Day thereof; |
(i) | any Original Lender; and | |
(ii) | any bank, financial institution, trust, fund or other entity which has become a party to this Agreement in accordance with Clause 18, |
(i) | Tan Sri Lim Goh Tong; | |
(ii) | his spouse; | |
(iii) | his direct lineal descendants; | |
(iv) | the personal estate of any of the above persons; and | |
(v) | any trust created for the benefit of one or more of the above persons and their estates; |
(a) | if a Drawing has not then been advanced, a Lender or Lenders whose Commitments aggregate more than sixty seven per cent (67%) of the aggregate total of the Commitments (or, if the aggregate total of the |
8
Commitments have been reduced to zero, aggregated more than sixty seven per cent (67%) of the aggregate total of the Commitments immediately prior to the reduction); or | ||
(b) | at any other time, a Lender or Lenders whose Contributions to the Facility aggregate more than sixty seven per cent (67%) of the Facility then outstanding; |
9
10
11
12
(i) | DnB NOR Bank ASA; or | |
(ii) | any other person that becomes a Swingline Lender after the Signing Date in accordance with Clause 18, |
13
(i) | Indebtedness for Borrowed Money of the NCLC Group; and | ||
(ii) | the amount of any Indebtedness for Borrowed Money of any person which is not a member of the NCLC Group but which is guaranteed by a member of the NCLC Group as at such date; |
14
Name | Flag | Berths | Owner | |||||
NORWEGIAN DAWN
|
Bahamas | 2,220 | Norwegian Dawn Limited | |||||
|
||||||||
NORWEGIAN SUN
|
Bahamas | 1,940 | Norwegian Sun Limited |
1.2 | Construction |
1.2.1 | clause headings are inserted for convenience of reference only and shall be ignored in the construction of this Agreement; | ||
1.2.2 | references to Clauses and to Schedules are to be construed as references to clauses of and schedules to this Agreement unless otherwise stated and references to this Agreement are to be construed as references to this Agreement including its Schedules; | ||
1.2.3 | references to (or to any specified provision of) this Agreement or any other document shall be construed as references to this Agreement, that provision or that document as from time to time amended, supplemented and/or novated; | ||
1.2.4 | references to any Act or any statutory instrument shall be construed as references to that Act or that statutory instrument as from time to time re-enacted, amended or supplemented; | ||
1.2.5 | references to any party to this Agreement or any other document shall include reference to such partys successors and permitted assigns; | ||
1.2.6 | words importing the plural shall include the singular and vice versa; | ||
1.2.7 | references to a person shall be construed as references to an individual, firm, company, corporation, unincorporated body of persons or any state or any agency thereof; | ||
1.2.8 | where any matter requires the approval or consent of the Agent such approval or consent shall not be deemed to have been given unless given in writing; where any matter is required to be acceptable to the Agent shall not be deemed to have accepted such matter unless its acceptance is communicated in writing; the Agent may give or withhold its consent, approval or acceptance at its unfettered discretion; and |
15
1.2.9 | a certificate by the Agent as to any amount due or calculation made hereunder shall be conclusive except for manifest error. |
1.3 | Agent |
1.4 | Third Party rights |
2 | The Facility |
2.1 | Availability |
2.1.1 | The Lenders grant to the Borrower the Facility which is of a revolving nature. The Revolving Credit Facility and the Swingline Facility shall be available to the Borrower during the Availability Period subject to the provisions of Clause 2.2, Clause 2.3 and Clause 2.4. Each Drawing shall be repaid on its Maturity Date. However, a Term of a Revolving Credit Facility Drawing may be extended to the end of the succeeding Interest Period in respect of that Drawing by the giving of a Renewal Notice by the Borrower to the Agent not later than 9.00 a.m. London time four (4) Business Days prior to the commencement of the relevant Interest Period. | ||
2.1.2 | Each Lender shall advance its Contribution to a Revolving Credit Facility Drawing in the proportion which its Commitment for the time being bears to the other Commitments of the Lenders to the Revolving Credit Facility. | ||
2.1.3 | None of the Agent or any other Lender shall be liable for any failure or delay on the part of any Lender in making any advance hereunder nor shall the Agent have any obligation to seek to procure additional Lenders in the event of such a failure PROVIDED THAT if any Lender should fail to advance its Contribution to an advance hereunder, that Lender and the Agent will take all reasonable steps to mitigate the effect of that failure. Notwithstanding the aforesaid proviso, no Lender shall be obliged to increase its Contribution hereunder in respect of the failure by any other Lender to fund any Contribution. | ||
2.1.4 | The Swingline Lender shall advance its Contribution to a Swingline Facility Drawing in the proportion which its Commitment for the time being bears to the other Commitments of the Lenders to the Swingline Facility. | ||
2.1.5 | The Swingline Lender shall advance its Contribution to each Swingline Facility Drawing through its Lending Branch in New York. |
16
2.2 | Purpose and Application |
2.2.1 | The Borrower shall apply or procure the application of the Revolving Credit Facility in refinance of all existing indebtedness relating to the Vessels and for general corporate purposes for the Borrower and its Subsidiaries. | ||
2.2.2 | The Borrower shall apply or procure the application of the Swingline Facility for general short term corporate purposes of the Borrower PROVIDED THAT a Swingline Facility Drawing may not be applied in repayment or prepayment of another Swingline Facility Drawing. |
2.3 | Advance of a Revolving Credit Facility Drawing to the Borrower |
2.3.1 | the Agent receives notice of the Borrowers request for the Revolving Credit Facility Drawing by not later than 9.00 a.m. London time four (4) Business Days prior to the Advance Date in the form of Schedule 2; | ||
2.3.2 | the Advance Date proposed is a Business Day within the relevant Availability Period; | ||
2.3.3 | the Revolving Credit Facility Drawing is in a minimum amount of ten million Dollars (USD10,000,000); | ||
2.3.4 | on any Advance Date not more than [**] [Confidential Treatment] Revolving Credit Facility Drawings will be outstanding; | ||
2.3.5 | the drawdown of the Revolving Credit Facility Drawing would not result in the amount of the Facility exceeding the Maximum Facility Amount on the Advance Date; | ||
2.3.6 | no Event of Default or Possible Event of Default has occurred before the relevant Advance Date and such drawing would not constitute an Event of Default or a Possible Event of Default; | ||
2.3.7 | the representations and warranties set out in Clause 9 and each of the other Security Documents are correct on the relevant Advance Date; | ||
2.3.8 | no event or circumstance has occurred which the Majority Lenders believe has had or reasonably believe will have a Material Adverse Effect; and | ||
2.3.9 | it is then lawful for each of the Lenders to make available its relevant Contribution to the Revolving Credit Facility Drawing. |
2.4 | Advance of a Swingline Facility Drawing to the Borrower |
2.4.1 | the Swingline Lender receives notice of the Borrowers request for the Swingline Facility Drawing by 10.00 a.m. New York time on the Advance |
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Date in the form of Schedule 2 (only one Swingline Facility Drawing may be requested in each such notice); |
2.4.2 | the Advance Date proposed is a Business Day within the Availability Period; | ||
2.4.3 | the Swingline Facility Drawing is in a minimum amount of two million Dollars (USD2,000,000); | ||
2.4.4 | on any Advance Date not more than [**] [Confidential Treatment] Swingline Facility Drawings will be outstanding; | ||
2.4.5 | the drawdown of the Swingline Facility Drawing would not result in the amount of the Swingline Facility exceeding the Maximum Swingline Facility Amount on the Advance Date; | ||
2.4.6 | the drawdown of the Swingline Facility Drawing would not result in the amount of the Facility exceeding the Maximum Facility Amount on the Advance Date; | ||
2.4.7 | no Event of Default or Possible Event of Default has occurred before the relevant Advance Date and such drawing would not constitute an Event of Default or a Possible Event of Default; | ||
2.4.8 | the representations and warranties set out in Clause 9 and each of the other Security Documents are correct on the relevant Advance Date; | ||
2.4.9 | no event or circumstance has occurred which the Majority Lenders believe has had or reasonably believe will have a Material Adverse Effect; and | ||
2.4.10 | it is then lawful for the Swingline Lender to make available its relevant Contribution to the Swingline Facility Drawing. |
2.5 | Break costs |
2.6 | Conditions of drawdown |
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2.7 | Several obligations of the Lenders |
2.8 | Lenders failure to perform |
2.9 | Fulfilment of conditions after drawdown |
3 | Repayment, Reduction, Cancellation and Prepayment of the Facility |
3.1 | Repayment |
3.1.1 | the maturing Drawing shall be deemed to have been repaid on its Maturity Date either in whole (if the new Drawing is equal to or greater than the maturing Drawing) or in part (if the new Drawing is less than the maturing Drawing); and | ||
3.1.2 | to the extent that the maturing Drawing is so deemed to have been repaid, the principal amount of the new Drawing to be made on such date shall be deemed to have been credited to the account of the Borrower by the Agent on behalf of the Lenders in accordance with the terms of this Agreement and the Lenders shall only be obliged to make available to the Borrower pursuant to Clause 2.3 or Clause 2.4 a principal amount equal to the amount by which the new Drawing exceeds the maturing Drawing. |
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3.2 | Scheduled reductions of Commitments to the Facility |
3.2.1 | Subject to the second paragraph of this Clause 3.2.1, on each of the Reduction Dates the Maximum Facility Amount as at the Signing Date shall be reduced by [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]. | ||
The Borrower shall pay to the Agent all accrued interest on the reduction amount to that Reduction Date. Amounts repaid by the Borrower pursuant to this Clause 3.2.1 shall not be available for reborrowing. |
3.2.2 | Without prejudice to any other provision of this Agreement, the Commitments to the Facility shall be reduced to zero on the Final Maturity Date. | ||
3.2.3 | The Maximum Swingline Facility Amount shall not be reduced prior to the Final Maturity Date save to the extent that the aggregate of the Available Commitments does not exceed the Maximum Swingline Facility Amount. |
3.3 | Sale or Total Loss of a Vessel: mandatory cancellation |
3.4 | Amounts payable on prepayment |
3.4.1 | accrued interest on the amount to be prepaid to the date of such prepayment (calculated in respect of any period during which a Substitute Basis has applied by virtue of Clause 6.3, at the rate per annum more particularly described in Clause 6.2); | ||
3.4.2 | any additional amounts payable under Clause 7.2 and Clause 8.1; | ||
3.4.3 | costs certified by the Agent as necessary to compensate the Lenders for the cost of repaying fixed deposits borrowed to fund any part of any Drawing or the Facility which is prepaid before the relevant Maturity Date or the fixed term by reference to which the relevant Interest Rate has been ascertained; and | ||
3.4.4 | all other sums payable by the Borrower to the relevant Lender under this Agreement including, without limitation, any accrued commitment fee payable under Clause 14.1. |
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3.5 | Notice of prepayment |
3.6 | Voluntary cancellation of Commitments |
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3.7 | Additional partial cancellation |
3.8 | Prepayment during Term |
3.9 | Mandatory cancellation in case of illegality |
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3.10 | Voluntary cancellation following imposition of Substitute Basis |
3.11 | Cancellation in case of Total Loss of a Vessel |
3.11.1 | if it consists of an actual loss, at noon Greenwich Mean Time on the actual date of loss or, if that is not known, on the date on which the Vessel was last heard of; | ||
3.11.2 | if it consists of a Compulsory Acquisition, at noon Greenwich Mean Time on the date on which the requisition is expressed to take effect by the person requisitioning the Vessel; or | ||
3.11.3 | if it consists of a constructive or compromised or arranged or agreed total loss or damage to the Vessel rendering repair impracticable or uneconomical or rendering the Vessel permanently unfit for normal use, at noon Greenwich Mean Time on the date on which notice claiming the loss of the Vessel is given to its insurers. |
3.12 | Cancellation in case of sale of a Vessel |
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4 | Interest |
4.1 | Payment of interest |
4.2 | Selection and duration of Interest Periods |
4.2.1 | The Borrower may give notice to the Agent to be received by the Agent not later than 9.00 a.m. London time four (4) Business Days prior to the commencement of each Interest Period in respect of a Revolving Credit Facility Drawing, specifying whether that Interest Period is to be of one (1) months or three (3) or six (6) months duration or of such other period as the Borrower and all the Lenders may agree PROVIDED THAT no more than three (3) Interest Periods of one (1) months duration may be requested in any one (1) calendar year in respect of the Revolving Credit Facility. Interest Periods shall commence, in the case of the first in respect of a Revolving Credit Facility Drawing, on the relevant Advance Date and, in the case of Interest Periods other than the first, on the expiry of the preceding Interest Period. Each Interest Period shall, subject to the following provisions of this Clause 4, be of a duration selected by the Borrower as above PROVIDED THAT the final Interest Period in respect of a Revolving Credit Facility Drawing shall end on the Maturity Date of that Revolving Credit Facility Drawing. | ||
4.2.2 | The Borrower may give notice to the Swingline Lender with a copy to the Agent, to be received by the Swingline Lender and the Agent not later than 10.00 a.m. New York time on the Advance Date in respect of a Swingline Facility Drawing, specifying whether that Interest Period is to be of one (1), two (2), three (3), four (4) or five (5) Business Days duration. Interest Periods shall commence on the relevant Advance Date. Each Interest Period shall, subject to the following provisions of this Clause 4, be of a duration selected by the Borrower as above PROVIDED THAT no Interest Period in respect of a Swingline Facility Drawing shall end after the Final Maturity Date. |
4.3 | No notice and unavailability |
4.4 | Extension and shortening of Interest Periods |
4.4.1 | If an Interest Period would otherwise end on a day which is not a Business Day, the Interest Period shall be extended until the next following Business Day unless the next following Business Day falls in the next |
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4.4.2 | If an Interest Period commences on the last Business Day in a month and if there is no day in the month in which the Interest Period will end which corresponds numerically to the day on which it begins, the Interest Period shall end on the last Business Day in that month. |
4.5 | Interest Rate |
4.5.1 | Subject to Clause 4.7, Clause 5.3 and Clause 6, the rate of interest applicable to a Revolving Credit Facility Drawing during an Interest Period shall be the rate per annum which is the sum of LIBOR, the Applicable Margin and Mandatory Costs. | ||
4.5.2 | Subject to Clause 4.7 and Clause 6, the rate of interest applicable to a Swingline Facility Drawing during an Interest Period shall be the rate per annum which is the sum of the British Bankers Association overnight rate for Dollars which appears on the Reuters BBA Page LIBOR 01 at or about 11.00 a.m. London time on the Advance Date, the aggregate of the Applicable Margin and [**] [Confidential Treatment] per cent [**] [Confidential Treatment] and Mandatory Costs. |
4.6 | Bank basis |
4.7 | Default interest |
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5 | Swingline Facility |
5.1 | Swingline Lenders participation |
5.2 | Relationship with the Revolving Credit Facility |
5.2.1 | The Revolving Credit Facility may be used by way of the Swingline Facility. The Swingline Facility is not independent of the Revolving Credit Facility. | ||
5.2.2 | Notwithstanding any other term of this Agreement the Swingline Lender is only obliged to advance a Swingline Facility Drawing to the extent that it would not result in its Commitment in the Facility exceeding its Available Commitment after the earlier of the relevant Due Date and the relevant Reallocation Date. |
5.3 | Reallocation |
5.3.1 | If a Swingline Facility Drawing is not repaid in full on its due date (the Due Date ), the Agent shall (on being requested to do so in writing by the Swingline Lender) set the date (the Reallocation Date ) on which payments shall be made between the Lenders to re-distribute the unpaid amount between them. The Reallocation Date shall be the third (3 rd ) Business Day after the Due Date. The Agent shall give notice to each affected Lender of the Reallocation Date not later than 10.00 a.m. London time two (2) Business Days prior to the Reallocation Date and notify it of the amounts to be paid or received by it. Interest shall be payable on the Swingline Facility Drawing between the Due Date and the Reallocation Date in accordance with Clause 5.3.2. The Interest Period shall commence on the Due Date and expire on the Reallocation Date. | ||
5.3.2 | On the Reallocation Date each Lender shall pay to the Agent its proportion of the Unpaid Amount less its Unpaid Swingline Participation (if any). If this produces a negative figure for a Lender no amount need be paid by that Lender. Any such payment made shall be deemed to be a Contribution of that Lender to a Revolving Credit Facility Drawing. The Interest Rate applicable to the Unpaid Amount shall be the rate per annum which is the sum of LIBOR, the aggregate of the Applicable Margin and [**] [Confidential Treatment] and Mandatory Costs. The Interest Period shall be of one (1) months duration. The provisions of |
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Clause 2.3 shall not apply to the deemed Revolving Credit Facility Drawing. |
(a) | its Commitment (or, if its Commitment is then zero, its Commitment immediately prior to its reduction to zero) minus its Contribution to the Facility (but ignoring its Contribution to the unpaid Swingline Facility Drawing): to | ||
(b) | the aggregate of the Available Commitments (or, if the Commitments are then zero, the Commitments immediately prior to their reduction to zero) minus any outstanding Revolving Credit Facility Drawings (but ignoring the unpaid Swingline Facility Drawing). |
5.3.3 | Out of the funds received by the Agent pursuant to Clause 5.3.2 the Agent shall pay to the Swingline Lender an amount equal to the Shortfall (if any) of the Swingline Lender where: |
5.3.4 | (a) On a payment under this Clause 5.3, the paying Lender will be subrogated to the rights of the Swingline Lender. | ||
(b) | If and to the extent a paying Lender is not able to rely on its rights under Clause 5.3.4(a), the Borrower shall be liable to the paying Lender for a debt equal to the amount the paying Lender has paid under this Clause 5.3. | ||
(c) | Any payment under this Clause 5.3 does not reduce the obligations in aggregate of any Obligor. |
6 | Substitute Basis of Funding |
6.1 | Market disturbance |
6.1.1 | by reason of circumstances affecting the relevant interbank eurocurrency market adequate and fair means do not exist for ascertaining the Interest Rate during such Interest Period pursuant to Clause 4 or Clause 5; or |
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6.1.2 | deposits in Dollars of equal duration to such Interest Period will not be available to any of the Lenders in the relevant interbank eurocurrency market in sufficient amounts in the ordinary course of business to fund its relevant Contribution during such Interest Period; or | ||
6.1.3 | by reason of any material change in applicable law or regulation or of any change in national or international financial or economic conditions any of the Lenders is unable to fund or to continue to fund its relevant Contribution during such Interest Period by deposits obtained in the relevant interbank eurocurrency market, |
6.2 | Suspension of drawdown |
6.3 | Certificates of Substitute Basis |
6.3.1 | If a Drawing has been advanced before a Suspension Notice is given, the Lender or Lenders affected by the relevant market disturbance shall within thirty (30) days following the date of the Suspension Notice, certify (through the Agent) in good faith to the Borrower an alternative basis (being the Substitute Basis) for maintaining its relevant Contribution affected by the relevant market disturbance. Such Substitute Basis may be retroactive to the beginning of the then current Interest Period in respect of the Drawing and may include an alternative method of fixing the Interest Rate (which shall reflect the cost to the relevant Lender or Lenders of funding its relevant Contribution from other sources plus the Applicable Margin) or alternative Interest Periods for the relevant Drawing, provided always that so far as practicable any such Substitute Basis shall be computed in a manner and for periods as similar as possible to those provided in Clause 4. | ||
6.3.2 | Each Substitute Basis so certified shall be binding upon the Borrower, the Agent and the Lenders and shall be treated as part of this Agreement. |
6.4 | Review |
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7 | Payments |
7.1 | Place for payment |
7.2 | Deductions and grossing-up |
7.2.1 | Each payment to be made by the Borrower to the Agent or the Lenders hereunder or under the fee letter referred to in Clause 14.2 or any other fee letter shall be made free and clear of and without deduction for or on account of Taxes unless the Borrower is required by law to make such a payment subject to the deduction or withholding of Taxes, in which case the sum payable by the Borrower in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Agent or the Lenders receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have received and so retained had no such deduction or withholding been made or required to be made. | ||
7.2.2 | Without prejudice to the provisions of Clause 7.2.1, if any Lender or the Agent on its behalf or the Agent is required to make any payment on account of tax (not being a tax imposed on the net income of its Lending Branch by the jurisdiction in which it is incorporated or in which its Lending Branch is located or any other tax existing and applicable on the Signing Date under the laws of any jurisdiction) or otherwise on or in relation to any sum received or receivable hereunder by such Lender or the Agent on its behalf or the Agent (including, without limitation, any sum received or receivable under this Clause 7) or any liability in respect of any such payment is asserted, imposed, levied or assessed against such Lender or the Agent on its behalf or the Agent, the Borrower shall, upon demand of the Agent, indemnify such Lender or the Agent on its behalf or the Agent against such payment or liability, together with any interest, penalties and expenses payable or incurred in connection therewith other than interest penalties and expenses that are otherwise imposed or asserted on account of the bad faith or wilful neglect of such Lender or the Agent on its behalf or the Agent. If any Lender or the Agent proposes to make a claim under the provisions of this Clause 7.2.2 it shall certify to the Borrower in reasonable detail within thirty (30) days (or such longer period as any Lender or the Agent may reasonably require) after becoming aware of the event by reason of which it is entitled to make its claim or claims the basis of its claim or claims, such certificate to be conclusive, save for manifest error. |
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7.3 | Production of receipts for Taxes |
7.4 | Currency of account |
7.4.1 | a repayment or payment of all or part of the Facility, the Revolving Credit Facility, the Swingline Facility or any sum due and payable but unpaid by any Obligor (other than the Manager) under the Security Documents shall be made in the currency in which the Facility, the Revolving Credit Facility, the Swingline Facility or such unpaid sum is denominated on its due date; | ||
7.4.2 | each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued; and | ||
7.4.3 | each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred |
7.5 | Money of account |
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7.5.1 | making or filing a claim or proof against the Borrower; | ||
7.5.2 | obtaining an order or judgment in any court or other tribunal; or | ||
7.5.3 | enforcing any order or judgment given or made in relation thereto; |
7.6 | Accounts |
7.7 | Earnings |
7.8 | Continuing security |
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7.9 | Mitigation |
8 | Yield Protection and Force Majeure |
8.1 | Increased costs |
8.1.1 | If by reason of: |
(a) | any change in law or in its interpretation or administration after the Signing Date; and/or | ||
(b) | after the Signing Date compliance with any request from or requirement of any central bank or other fiscal, monetary or other authority including but without limitation the Basle Committee on Banking Supervision whether or not having the force of law: |
(i) | any of the Lenders or an Associated Company incurs a cost as a result of the relevant Lender performing its obligations under this Agreement and/or its advancing its Contribution hereunder; or | ||
(ii) | there is any increase in the cost to any of the Lenders or an Associated Company of the relevant Lender funding or maintaining all or any of the advances comprised in a class of advances formed by or including its Contribution advanced or to be advanced by it hereunder; or | ||
(iii) | any of the Lenders or an Associated Company incurs a cost as a result of the relevant Lender having entered into and/or its assuming or maintaining its commitment under this Agreement; or | ||
(iv) | any of the Lenders or an Associated Company becomes liable to make any payment on account of Tax or otherwise (other than Tax on its overall net income) on or calculated by reference to the amount of the relevant Lenders Contribution advanced or to be advanced hereunder and/or any sum received or receivable by it hereunder; or | ||
(v) | any of the Lenders or an Associated Company suffers any decrease in its rate of return as a result of any changes in the requirements relating to capital ratios, monetary control ratios, reserve assets, the payment of special deposits, liquidity costs or other similar requirements affecting that Lender or Associated Company, |
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8.1.2 | A Lender affected by any provision of Clause 8.1.1 shall promptly inform the Agent after becoming aware of the relevant change or request and its possible results and the Agent shall, as soon as reasonably practicable thereafter, notify the Borrower of the change or request and its possible results. Without affecting the Borrowers obligations under Clause 8.1.1 and in consultation with the Agent, the affected Lender will then take all such reasonable steps as may be open to it to mitigate the effect of the change or request (for example (if then possible) by changing its Lending Branch or transferring some or all of its rights and obligations under this Agreement to another financial institution reasonably acceptable to the Agent and after consultation with the Borrower). The reasonable costs of mitigating the effect of any such change shall be borne by the Borrower save where such costs are of an internal administrative nature and are not incurred in dealings by any Lender with third parties. |
8.2 | Force Majeure |
8.2.1 | the suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure; | ||
8.2.2 | the obligations of the Non-Performing Party shall not be excused as a result of the Force Majeure; and | ||
8.2.3 | in respect of the suspension of the Non-Performing Partys obligations: |
(a) | the Non-Performing Party gives the Agent prompt written notice which the Agent shall forthwith upon receipt send to the Borrower describing the circumstances of Force Majeure (including the nature of the occurrence, its expected duration and the effects of the Force Majeure on the ability of the Non-Performing Party to perform its relevant obligations), and continues to furnish weekly reports with respect thereto during the period of Force Majeure; | ||
(b) | the Non-Performing Party uses all reasonable efforts to remedy its inability to perform and to mitigate the effects of the Force Majeure; and |
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(c) | as soon as reasonably possible after the cessation of the Force Majeure the Non-Performing Party shall notify the Agent (who shall notify the Borrower) in writing of such cessation and shall resume performance of its obligations under this Agreement if such resumption is then possible. |
9 | Representations and Warranties |
9.1 | Duration |
9.2 | Representations and warranties |
9.2.1 | Status Each Obligor is a corporation duly organised, constituted and validly existing under the laws of the country of its incorporation, possessing perpetual corporate existence, the capacity to sue and be sued in its own name and the power to own and charge its assets and carry on its business as it is now being conducted. | ||
9.2.2 | Powers and authority Each of the Obligors has the power to enter into and perform this Agreement and those of the other Security Documents to which it is a party and the transactions contemplated hereby and thereby and has taken all necessary action to authorise the entry into and performance of this Agreement and such other Security Documents and such transactions. | ||
9.2.3 | Legal validity This Agreement constitutes legal, valid and binding obligations of the Borrower enforceable in accordance with its terms and in entering into this Agreement and borrowing the Facility, the Borrower is acting on its own account. Each other Transaction Document constitutes (or will constitute when executed) legal, valid and binding obligations of each Obligor expressed to be a party thereto enforceable in accordance with their respective terms. | ||
9.2.4 | Non-conflict with laws The entry into and performance of this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby do not and will not conflict with: |
(a) | any law or regulation or any official or judicial order; or | ||
(b) | the constitutional documents of any Obligor; or | ||
(c) | any agreement or document to which any Obligor is a party or which is binding upon such Obligor or any of its assets, |
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9.2.5 | No default Save as disclosed in writing to the Agent prior to the Signing Date, no event has occurred which constitutes a default under or in respect of any Transaction Document to which any Obligor is a party or by which any Obligor may be bound (including (inter alia) this Agreement) and no event has occurred which, with the giving of notice, lapse of time, determination of materiality or other condition might constitute a default under or in respect of any such Transaction Document and no event has occurred which constitutes a default under or in respect of any agreement or document to which any Obligor is a party or by which any Obligor may be bound to an extent or in a manner which might have a material adverse effect on its business, assets or financial condition and no event has occurred which, with the giving of notice, lapse of time, determination of materiality or other condition might constitute a default under or in respect of any such agreement or document. | ||
9.2.6 | Consents Except for the filing of those Security Documents which require registration in the Companies Registries in England and Wales, the Isle of Man, the United States of America and/or Bermuda, which filing must be completed within twenty one (21) days and one (1) month respectively of the execution of the relevant Security Document(s) in the case of England and Wales and the Isle of Man, and for the registration of the Mortgages through the Bahamas Maritime Authority, all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Agreement and each of the other Transaction Documents and the transactions contemplated thereby have been obtained or effected and are in full force and effect. | ||
9.2.7 | Accuracy of information All information furnished by any Obligor relating to the business and affairs of any Obligor in connection with this Agreement and the other Transaction Documents was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading. | ||
9.2.8 | Full disclosure Each Obligor has fully disclosed in writing to the Agent all facts relating to each Obligor which it knows or should reasonably know and which might reasonably be expected to influence the Lenders in deciding whether or not to enter into this Agreement. | ||
9.2.9 | No Encumbrances None of the assets or rights of any Obligor is subject to any Encumbrance except Permitted Liens. | ||
9.2.10 | Pari passu or priority status The claims of the Finance Parties against the Borrower under this Agreement will rank at least pari passu with the claims of all unsecured creditors of the Borrower (other than claims of such creditors to the extent that they are statutorily preferred) and in |
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priority to the claims of any creditor of the Borrower who is also an Obligor. | |||
9.2.11 | Solvency The Obligors are and shall remain, after the advance to them of the Facility or any of it, solvent in accordance with the laws of Bermuda and the United Kingdom and in particular with the provisions of the United Kingdoms Insolvency Act 1986 (as from time to time amended) and the requirements thereof. | ||
9.2.12 | Winding-up, etc. Subject to Clause 10.11, neither the Borrower nor any other Obligor has taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against any of them for the winding-up, dissolution or for the appointment of a liquidator, administrator, receiver, administrative receiver, trustee or similar officer of any of them or any or all of their assets or revenues nor have either sought any other relief under any applicable insolvency or bankruptcy law. | ||
9.2.13 | Accounts The consolidated audited accounts of the NCLC Group for the period ending on 31 December of each financial year during the period of this Agreement (which accounts will be prepared in accordance with US GAAP) will fairly represent the financial condition of the NCLC Group as shown in such audited accounts. | ||
9.2.14 | Litigation Save as disclosed in the Disclosure Letter and/or the Borrowers most recent US Securities Exchange Commission filing, no litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency (including but not limited to investigative proceedings) are current or pending or, to its knowledge, threatened, which might, if adversely determined, have a Material Adverse Effect. For the avoidance of doubt, the disclosure of any such litigation, arbitration or administrative proceedings after the Signing Date shall not be deemed to be a fact and circumstance subsisting at any time that this representation is deemed to be repeated pursuant to Clause 9.1. | ||
9.2.15 | Tax liabilities To the best of its knowledge, the NCLC Group has complied with all taxation laws in all jurisdictions in which it is subject to Taxation and has paid all material Taxes due and payable by it; no material claims are being asserted against it with respect to Taxes, which might, if such claims were successful, have a material adverse effect on the ability of any Obligor to perform its obligations under the Transaction Documents. | ||
9.2.16 | Ownership of assets Each member of the NCLC Group has good and marketable title to all its assets which is reflected in the audited accounts referred to in Clause 9.2.13. | ||
9.2.17 | No immunity None of the Obligors nor any of their respective assets enjoys any right of immunity (sovereign or otherwise) from set-off, suit or execution in respect of their obligations under this Agreement or any of the other Transaction Documents or by any relevant or applicable law. |
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9.2.18 | Taxes on payments As at the Signing Date all amounts payable by the Borrower hereunder may be made free and clear of and without deduction for or on account of any Taxation. | ||
9.2.19 | Place of business None of the Obligors has a place of business in any jurisdiction (except as already disclosed) which requires any of the Security Documents to be filed or registered in that jurisdiction to ensure the validity of the Security Documents to which it is a party. | ||
9.2.20 | Ownership of shares All the shares in each of the Owners and the Manager shall be legally and beneficially owned directly or indirectly by the Borrower and such structure shall remain so throughout the Security Period. Further, no Event of Default has occurred under Clause 12.1.16 in respect of the ownership and/or control of the shares in the Borrower. | ||
9.2.21 | Completeness of documents The copies of the Management Agreements and any other relevant third party agreements delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and no amendments thereto or variations thereof have been agreed other than (if applicable), in the case of the Management Agreements, in accordance with clause 6.1.17 of the two (2) deeds of covenants collateral to the two (2) first priority statutory Bahamian ship mortgages, as amended by the Co-ordination Deeds, to be granted by each of the Owners over its Vessel nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable. | ||
9.2.22 | No undisclosed commissions There are and will be no commissions, rebates, premiums or other payments by or to or on account of any Obligor, their shareholders or directors in connection with the transaction as a whole other than as disclosed to the Agent in writing. | ||
9.2.23 | Environment Each of the Obligors: |
(a) | is in compliance with all applicable federal, state, local, foreign and international laws, regulations, conventions and agreements relating to pollution prevention or protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, navigable waters, water of the contiguous zone, ocean waters and international waters), including without limitation, laws, regulations, conventions and agreements relating to: |
(i) | emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous materials, oil, hazard substances, petroleum and petroleum products and by-products ( Materials of Environmental Concern ); or | ||
(ii) | the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of |
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Environmental Concern (such laws, regulations, conventions and agreements the Environmental Laws ); |
(b) | has all permits, licences, approvals, rulings, variances, exemptions, clearances, consents or other authorisations required under applicable Environmental Laws ( Environmental Approvals ) and are in compliance with all Environmental Approvals required to operate its business as presently conducted or as reasonably anticipated to be conducted; | ||
(c) | has not received any notice, claim, action, cause of action, investigation or demand by any other person, alleging potential liability for, or a requirement to incur, investigatory costs, clean-up costs, response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural resources damages, property damages, personal injuries, attorneys fees and expenses or fines or penalties, in each case arising out of, based on or resulting from: |
(i) | the presence or release or threat of release into the environment of any Material of Environmental Concern at any location, whether or not owned by such person; or | ||
(ii) | circumstances forming the basis of any violation, or alleged violation, of any Environmental Law or Environmental Approval ( Environmental Claim ), |
9.2.24 | Money laundering Any borrowing by the Borrower hereunder, and the performance of its obligations hereunder and under the other Security Documents, will be for its own account and will not, to the best of its knowledge, involve any breach by it of any law or regulatory measure relating to money laundering as defined in Article 1 of the Directive (91/308/EEC) of the Council of the European Communities. |
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10 | Undertakings |
10.1 | Duration |
10.2 | Information |
10.2.1 | as soon as practicable (and in any event within one hundred and twenty (120) days after the close of each of its financial years) a Certified Copy of its Accounts (commencing with the audited accounts made up to 31 December 2006); | ||
10.2.2 | as soon as practicable (and in any event within sixty (60) days after the close of each of the first three (3) quarters of each financial year) a Certified Copy of the unaudited consolidated accounts of the NCLC Group for that quarter (commencing with the unaudited accounts made up to 31 March 2007); | ||
10.2.3 | as soon as practicable (and in any event within one hundred and twenty (120) days after the close of each financial year), beginning with the financial year ending 31 December 2006, annual cash flow projections on a consolidated basis of the NCLC Group showing on a monthly basis advance ticket sales (for at least twelve (12) months following the date of such statement) for the NCLC Group; | ||
10.2.4 | as soon as practicable (and in any event not later than 31 January of each financial year): |
(a) | a budget for the NCLC Group for such new financial year including a twelve (12) month liquidity budget for such new financial year; | ||
(b) | updated financial projections of the NCLC Group for at least the next five (5) years (including income statement, balance sheet and cash flow projections for the NCLC Group); and | ||
(c) | an outline of the assumptions supporting the budget and financial projections referred to in paragraphs (a) and (b) of this Clause 10.2.4; |
10.2.5 | within fifteen (15) days of a request from the Agent (but at intervals no more frequently than annually at the Borrowers expense unless an Event of Default has occurred and is continuing), a valuation of each of the Vessels obtained in accordance with the provisions of Clause 10.17; | ||
10.2.6 | as soon as practicable (and in any event within sixty (60) days after the close of each of the first three (3) quarters of its financial year and within one hundred and twenty (120) days after the close of each financial year) |
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a statement signed by the NCLC Groups chief financial officer in the form of Schedule 6 (commencing with the fourth quarter of the financial year ending 31 December 2006) and such other information as the Agent may request; | |||
10.2.7 | promptly, such further information in its possession or control regarding its financial condition and operations and those of any company in the NCLC Group as the Agent may request; and | ||
10.2.8 | on a quarterly basis, details of any material litigation, arbitration or administrative proceedings affecting any Obligor which are instituted and served, or, to the knowledge of the Borrower, threatened (and for this purpose proceedings shall be deemed to be material if they involve a claim in an amount exceeding [**] [Confidential Treatment] Dollars [**] [Confidential Treatment] or the equivalent in another currency). |
10.3 | Financial Undertakings |
10.3.1 | at all times the minimum Free Liquidity will be not less than [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]; | ||
10.3.2 | either: |
(a) | as at 30 September 2006 and as at the end of each subsequent financial quarter the ratio of Consolidated EBITDA to Consolidated Debt Service for the NCLC Group, computed for the period of the four (4) consecutive financial quarters ending at the end of the relevant financial quarter, shall not be less than [**] [Confidential Treatment]; or | ||
(b) | at all times during the period of twelve (12) months ending as at the end of the relevant financial quarter the NCLC Group has maintained a minimum Free Liquidity in an amount which is not less than [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]; and |
10.3.3 | as at 30 September 2006 and as at the end of each subsequent financial quarter, the ratio of Total Net Funded Debt to Total Capitalisation of the NCLC Group shall not exceed [**] [Confidential Treatment]. | ||
Amounts available for drawing under the Facility or any other revolving or other credit facilities of the NCLC Group which remain undrawn at the time of the relevant calculation shall not be counted as cash or indebtedness for the purposes of this ratio. |
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10.4 | Dividends |
10.4.1 | During any financial year of the Borrower until the date on which the Borrower becomes a listed company on an Approved Stock Exchange (on which date the restriction contained in this Clause 10.4.1 shall cease to apply), the Borrower shall not and shall procure that no other member of the NCLC Group shall, pay any dividends or make any other distributions in respect of its share capital to any person which during any financial year of the Borrower in aggregate exceeds fifty per cent (50%) of the Consolidated Net Income (if positive) of the NCLC Group for such financial year PROVIDED HOWEVER THAT (whether before or after the Borrower becomes a listed company on an Approved Stock Exchange) the NCLC Group shall not be entitled to pay any dividend or make any distribution in respect of any of its share capital if an Event of Default has occurred and is continuing or would occur as a result of the payment of such dividend or the making of such distribution and shall provide the Agent with a certificate signed by the chief financial officer of the NCLC Group confirming that no Event of Default has occurred and is continuing or would occur as a result of the payment of a dividend or the making of a distribution before such dividend is paid or distribution is made. | ||
10.4.2 | Subject to the provisions of Clause 10.4.1, the Borrower will procure that any dividends or other distributions and interest paid or payable in connection with such dividends or other distributions will be received promptly by the Borrower directly or indirectly from the Owners shareholder(s) (if such shareholder is not the Borrower) by way of dividend. |
10.5 | Notification of default |
10.6 | Consents and registrations |
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10.7 | Negative pledge |
10.7.1 | Encumbrances created with the prior consent of the Lenders; or | ||
10.7.2 | Permitted Liens. |
10.8 | Disposals |
10.8.1 | disposals made in the ordinary course of trading of the disposing entity (excluding disposal of ships) including without limitation, the payment of cash as consideration for the purchase or acquisition of any asset or service or in the discharge of any obligation incurred for value in the ordinary course of trading; | ||
10.8.2 | disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed; | ||
10.8.3 | disposals of assets in exchange for other assets comparable or superior as to type and value; and | ||
10.8.4 | a vessel or any other asset owned by any member of the NCLC Group (other than the Owners) may be sold provided such sale is on a willing seller willing buyer basis at or about market rate and at arms length subject always to the provisions of any loan documentation for the financing of such vessel or other asset. |
10.9 | Purchases |
10.9.1 | other than on arms length terms; | ||
10.9.2 | which is not for its use in its ordinary course of business; or | ||
10.9.3 | the cost of which is more than its fair market value at the date of acquisition. |
10.10 | Change of name or business |
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10.11 | Mergers |
10.11.1 | Clause 9.2.20; and | ||
10.11.2 | the cash flows from which the Outstanding Indebtedness will be repaid remaining comparable as to amount (relative to the amount of the Outstanding Indebtedness) and accessibility for the Borrower to the cash flows as at the Signing Date, in the sole discretion of the Lenders. |
10.12 | Maintenance of status and franchises |
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10.13 | Financial records |
10.14 | Subordination of indebtedness |
10.15 | Guarantees |
10.16 | Further assurance |
10.17 | Valuation of the Vessels |
10.17.1 | Each of the Vessels shall for the purposes of this Clause 10.17 be valued in Dollars by two (2) independent firms of shipbrokers or shipvaluers nominated by the Borrower and approved by the Agent (acting on the instructions of the Majority Lenders) or failing such nomination and approval, appointed by the Agent (acting on such instructions) in its sole discretion (each such valuation to be made without, unless reasonably required by the Agent, physical inspection and on the basis of a sale for prompt delivery for cash at arms length on normal commercial terms as between a willing buyer and a willing seller without taking into account the benefit of any charterparty or other engagement concerning the |
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10.18 | Marginal security |
10.18.1 | is less than one hundred per cent (100%) of the amount of the aggregate of the Available Commitments and the Contributions to the Facility during the period commencing on the Signing Date and ending forty eight (48) months after the Signing Date; | ||
10.18.2 | is less than one hundred and ten per cent (110%) of the amount of the aggregate of the Available Commitments and the Contributions to the Facility during the period commencing on the date falling forty eight (48) months after the Signing Date and ending seventy two (72) months after the Signing Date; and | ||
10.18.3 | thereafter, is less than one hundred and twenty per cent (120%) of the amount of the aggregate of the Available Commitments and the Contributions to the Facility, |
(a) | provide the Agent with additional security acceptable to the Majority Lenders such that the security value of the Vessels and any additional security provided to the Agent hereunder (at valuations reasonably estimated by the Agent from time to time) is at least one hundred per cent (100%), one hundred and ten per cent (110%) or one hundred and twenty per cent (120%) (as the case may be) of the aggregate of the Available Commitments and the Contributions to the Facility; or | ||
(b) | reduce the Available Commitments by such an amount that the value of the security is at least one hundred per cent (100%), one hundred and ten per cent (110%) or one hundred and twenty per cent (120%) (as the case may be) of the amount of the aggregate of the Available Commitments and the Contributions to the Facility. |
10.19 | No dealings with Master Agreements |
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10.20 | Financial year end |
10.21 | Maintenance and insurance |
10.22 | Vessels |
11 | Rights of the Agent and the Lenders |
11.1 | No derogation of rights |
11.2 | Enforcement of remedies |
11.2.1 | to take action or obtain judgment in any court against the Borrower or any other person from whom it or they may seek payment of any sum due from the Borrower under this Agreement or any other Security Document; | ||
11.2.2 | to make or file any claim in a bankruptcy, winding-up, liquidation or re-organisation of the Borrower or any other such person; or | ||
11.2.3 | to enforce or seek to enforce any other rights it or they may have against the Borrower or any other such person. |
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12 | Default |
12.1 | Events of default |
12.1.1 | Non-payment |
12.1.2 | Breach of other obligations |
(a) | Any Obligor fails to comply with any other material provision of any Security Document to which it is a party or there is any other material breach in the sole opinion of the Agent of any of the Transaction Documents and such failure (if in the opinion of the Agent in its sole discretion it is capable of remedy) continues unremedied for a period of thirty (30) days from the date of its occurrence and in any such case as aforesaid the Agent in its sole discretion considers that such failure is or could reasonably be expected to become materially prejudicial to the interests, rights or position of the Finance Parties or any of them; or | ||
(b) | If there is a repudiation or termination of any Transaction Document or if any of the parties thereto becomes entitled to terminate or repudiate any of them and evidences an intention so to do. |
12.1.3 | Misrepresentation |
12.1.4 | Cross default |
(a) | Any event of default occurs under any financial contract or financial document relating to any Financial Indebtedness of any member of the NCLC Group. |
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(b) | Any such Financial Indebtedness or any sum payable in respect thereof is not paid when due (after the expiry of any applicable grace period(s)) whether by acceleration or otherwise. | ||
(c) | Any Encumbrance over any assets of any member of the NCLC Group becomes enforceable. | ||
(d) | Any other Financial Indebtedness of any member of the NCLC Group is not paid when due or is or becomes capable of being declared due prematurely by reason of default or any security for the same becomes enforceable by reason of default, |
(i) | No Event of Default will arise if the relevant Financial Indebtedness is not accelerated or, if it is accelerated but, in aggregate, the Financial Indebtedness is less than fifteen million Dollars (USD15,000,000); | ||
(ii) | Financial Indebtedness being contested by the Borrower in good faith will be disregarded PROVIDED first that full details of the dispute shall be submitted to the Agent forthwith upon its occurrence and second if the dispute remains unresolved for a period of one hundred and fifty (150) days this Clause 12.1.4(ii) shall not apply to that Financial Indebtedness; and | ||
(iii) | If at any time hereafter the Borrower or any other member of the NCLC Group agrees to the incorporation of a cross default provision into any financial contract or financial document relating to any Financial Indebtedness that is more onerous than this Clause 12.1.4, then the Borrower shall immediately notify the Agent and that cross default provision shall be deemed to apply to this Agreement as if set out in full herein with effect from the date of such financial contract or financial document and during the currency of that financial contract or financial document. |
12.1.5 | Winding-up |
12.1.6 | Moratorium or arrangement with creditors |
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12.1.7 | Appointment of liquidators etc. |
12.1.8 | Insolvency |
12.1.9 | Legal process |
12.1.10 | Analogous events |
12.1.11 | Cessation of business |
12.1.12 | Revocation of consents |
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12.1.13 | Unlawfulness |
(a) | any Obligor to perform any of its obligations under any Security Document to which it is a party; or | ||
(b) | the Agent or any other Finance Party to exercise any of its rights under any of the Security Documents; |
12.1.14 | Insurances |
12.1.15 | Total Loss |
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12.1.16 | Ownership and control of the Borrower |
(a) | at any time when the ordinary share capital of the Borrower is not publicly listed on an Approved Stock Exchange or at any time when a dividend is to be paid to the existing shareholders of the Borrower by way of a share issue pursuant to a public offering on an Approved Stock Exchange, the Lim Family together or individually do not or will not, directly or indirectly, control the Borrower and beneficially own, directly or indirectly, at least fifty one per cent (51%) of the issued share capital of, and equity interest in, the Borrower; or | ||
(b) | at any time following the listing of the ordinary share capital of the Borrower on an Approved Stock Exchange: |
(i) | any individual or any Third Party: |
(A) | owns legally and/or beneficially and either directly or indirectly at least [**] [Confidential Treatment] per cent [**] [Confidential Treatment] of the ordinary share capital of the Borrower; or | ||
(B) | has the right or the ability to control either directly or indirectly the affairs of or the composition of the majority of the board of directors (or equivalent) of the Borrower, |
(ii) | the Borrower ceases to be a listed company on an Approved Stock Exchange without the prior written consent of the Majority Lenders, |
12.1.17 | Disposals |
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12.1.18 | Prejudice to security |
12.1.19 | Governmental intervention |
12.1.20 | Master Agreement termination |
12.2 | Acceleration |
12.2.1 | On the occurrence of an Event of Default or a Possible Event of Default and at any time thereafter whilst such event shall be continuing the Agent may if a Drawing has not yet been advanced, by notice to the Borrower cancel the obligations of the Lenders under this Agreement. | ||
12.2.2 | On the occurrence of an Event of Default and at any time thereafter whilst such event shall be continuing, if a Drawing has been advanced the Agent may: |
(a) | by notice to the Borrower declare the whole or any part of the Facility due and repayable in accordance with the terms of such notice whereupon the same shall become due and repayable accordingly together with all interest accrued thereon and all other amounts payable hereunder and under any of the other Security |
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Documents and the Commitments to the Facility shall be cancelled; and/or | |||
(b) | from time to time exercise all or any of its rights under any of the Security Documents in such order and in such manner as it shall deem appropriate; and/or | ||
(c) | at its sole discretion terminate or continue with the Management Agreements. |
12.3 | Default indemnity |
12.3.1 | any default in payment by the Borrower of any sum under this Agreement or any of the other Security Documents when due, including, without limitation, any liability incurred by the Agent and the Lenders by reason of any delay or failure of the Borrower to pay any such sums; | ||
12.3.2 | any break in funding (including without limitation warehousing and other related costs) due to the occurrence of any Event of Default or Possible Event of Default; | ||
12.3.3 | any prepayment of the Facility or any part thereof being made at any time for any reason; and/or | ||
12.3.4 | a Drawing not being drawn for any reason (excluding any default by the Agent or any Lender) after the relevant Drawdown Notice has been given, |
12.4 | Set off |
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12.5 | Master Agreement rights | ||
The rights conferred on the Agent and the Lenders by Clause 12.4 shall be in addition to, and without prejudice to or limitation of, the rights of netting and set off conferred on the Lenders and/or their Affiliates by the Master Agreements. |
13 | Application of Funds |
13.1 | Total Loss proceeds/proceeds of sale | ||
In the event of a Vessel becoming a Total Loss or if a Vessel is sold then the Total Loss proceeds or proceeds of sale of the Vessel shall be held by the Agent and applied in the following manner and order: |
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FIRSTLY | to the payment of all fees, expenses and charges (including brokers commissions), the expenses of any sale, the expenses of retaining any attorney, solicitors fees, court costs and any other expenses or advances made or incurred by the Agent or any Lender in the protection of the Agents and the Lenders rights or the pursuance of its or their remedies hereunder and under the other Security Documents or to any payments whether voluntary or not which the Agent considers advisable to protect its or their security and to provide adequate indemnity against liens claiming priority over or equality with the lien of the Security Documents or any other Encumbrances; | ||
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SECONDLY | in or towards payment in such order as the Lenders may require of any accrued (but unpaid) fees and interest thereon to which the Finance Parties or any of them are entitled hereunder and/or under the other Security Documents (other than the Master Agreements) in connection with the Facility; | ||
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THIRDLY | in or towards satisfaction of all interest accrued on the Facility; | ||
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FOURTHLY | in retention by the Agent in its discretion in a suspense or impersonal interest bearing security realised account of such sum as it considers appropriate by way of security for the Outstanding Indebtedness (other than the Master Agreement Liabilities) or for any actual or contingent liability of the Finance Parties or any of them in connection with the transactions herein contemplated; | ||
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FIFTHLY | in or towards payment of the Facility (whether or not then due and payable); | ||
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SIXTHLY | in or towards satisfaction of any other amounts due from the Borrower to the Finance Parties under the Security Documents (other than the Master Agreement Liabilities) |
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13.2 | General funds/Event of Default monies | ||
If an Event of Default has occurred and any monies are received by the Agent or any other Finance Party under or pursuant to the Security Documents or if any other monies are received by or in the possession of the Agent or any other Finance Party under or pursuant to the Security Documents which are expressed hereunder and/or under the Security Documents to be distributed in accordance with the provisions of this Clause or where no express provisions are made for disposal, such monies shall be applied in the discretion of the Agent as follows: |
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FIRSTLY | to the payment of all fees, expenses and charges (including brokers commissions), the expenses of any sale, the expenses of retaining any attorney, solicitors fees, court costs and any other expenses or advances made or incurred by the Agent or any Finance Party in the protection of the Agents and the Finance Parties rights or the pursuance of its or their remedies hereunder and under the other Security Documents or to any payments whether voluntary or not which the Agent considers advisable to protect its or their security and to provide adequate indemnity against liens claiming priority over or equality with the lien of the Security Documents or any other Encumbrances; | ||
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SECONDLY | in or towards payment in such order as the Lenders may require of any accrued (but unpaid) fees and interest thereon to which the Finance Parties are entitled hereunder and/or under the other Security Documents (other than the Master Agreements) in connection with the Facility; |
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THIRDLY | in or towards satisfaction of all interest accrued on the Facility; | ||
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FOURTHLY | in retention by the Agent in its discretion in a suspense or impersonal interest bearing security realised account of such sum as it considers appropriate by way of security for the Outstanding Indebtedness (other than the Master Agreement Liabilities) or for any actual or contingent liability of the Finance Parties or any of them in connection with the transactions herein contemplated; | ||
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FIFTHLY | in or towards payment of the Facility; | ||
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SIXTHLY | in or towards satisfaction of any other amounts due from the Borrower to the Finance Parties under the Security Documents (other than the Master Agreement Liabilities) using in the discretion of the Agent the same order of application as FIRSTLY to FIFTHLY ; | ||
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SEVENTHLY | in retention of such other sum or sums as the Agent may require as security for any further monies which may reasonably be expected to become due and payable to the Finance Parties under this Agreement, any of the other Security Documents and which the assigned Earnings may be insufficient to satisfy; | ||
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EIGHTHLY | in or towards satisfaction of the Master Agreement Liabilities in the same order in which the Transactions were entered into by the Borrower with the Lenders and/or their Affiliates (as the case may be); and | ||
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NINTHLY | the balance (if any) shall be released to the Borrower or to its order or whomsoever else may be entitled thereto. |
13.3 | Application of proceeds of Insurances | ||
Proceeds of the Insurances for partial losses shall be applied in accordance with the relevant Insurance Assignment and/or the loss payable clause endorsed on the Insurances in the form approved by the Agent and in the case of a Total Loss of a Vessel in accordance with Clause 3.11 and Clause 13.1. | |||
13.4 | Suspense account | ||
Any monies received or recovered by the Agent or any Lender under or in connection with the Security Documents and credited to any suspense or impersonal interest bearing security realised account in accordance with FOURTHLY of Clause 13.1 or Clause 13.2 may be held in such account for so long as the Agent thinks fit pending application at the Agents discretion in accordance with Clause 13.1 or Clause 13.2 (as the case may be). |
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14 | Fees |
14.1 | Commitment fee | ||
The Borrower shall pay to the Agent for distribution to the Lenders quarterly in arrears during the Commitment Period and on the last day of the Commitment Period, [**] [Confidential Treatment] per cent [**] [Confidential Treatment] of the Applicable Margin on the relevant payment date on the daily undrawn, uncancelled amount of Tranche 1 and, from the date that the condition of drawdown relating to Tranche 2 is satisfied, on the daily undrawn, uncancelled amount of the Facility during the Commitment Period. | |||
The Borrower shall also pay to the Agent for distribution to the Lenders quarterly in arrears during the Commitment Period and on the last day of the Commitment Period, [**] [Confidential Treatment] per cent [**] [Confidential Treatment] of the Applicable Margin on the relevant payment date on the daily undrawn, uncancelled amount of Tranche 2 during the Commitment Period until the date that the condition of drawdown relating to Tranche 2 is satisfied. | |||
14.2 | Other fees | ||
The Borrower will pay to the Agent on behalf of itself and the other Finance Parties such fees as are set out in separate fee letters dated 1 December 2006 between the Mandated Lead Arrangers and/or the Agent and the Borrower. |
15 | Expenses |
15.1 | Initial expenses | ||
The Borrower shall reimburse the Agent on demand on a full indemnity basis for the charges and expenses (together with value added tax or any similar tax thereon and including without limitation travel expenses and the fees (as pre-agreed) and expenses of legal, insurance and other advisers) incurred by the Mandated Lead Arrangers, the Lenders and the Agent in respect of the arrangement and syndication of the Facility and the negotiation, preparation, issue, printing, execution and registration of this Agreement and the other Transaction Documents and any other documents required in connection with the implementation of this Agreement. | |||
15.2 | Enforcement expenses | ||
The Borrower shall reimburse the Finance Parties on demand of the Agent on a full indemnity basis for all charges and expenses (including value added tax or any similar tax thereon and including the fees and expenses of legal advisers) incurred by the Finance Parties in connection with the enforcement of, or the preservation of any rights under, this Agreement and the other Security Documents. | |||
15.3 | Stamp duties | ||
The Borrower shall pay or indemnify the Finance Parties on demand of the Agent against any and all stamp, registration and similar Taxes which may be payable in any jurisdiction in connection with the entry into, performance and enforcement of this Agreement or any of the other Security Documents. |
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16 | Waivers, Remedies Cumulative |
16.1 | No waiver | ||
No failure to exercise and no delay in exercising on the part of the Agent or any of the Lenders any right or remedy under any of the Security Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. No waiver by the Agent or any of the Lenders shall be effective unless it is in writing. | |||
16.2 | Remedies cumulative | ||
The rights and remedies of the Agent, and the Lenders provided herein are cumulative and not exclusive of any rights or remedies provided by law. | |||
16.3 | Severability | ||
If any provision of this Agreement is prohibited or unenforceable in any jurisdiction, such prohibition or unenforceability shall not invalidate the remaining provisions hereof or affect the validity or enforceability of such provision in any other jurisdiction. | |||
16.4 | Time of essence | ||
Time is of the essence in respect of all of the obligations of the Borrower under the Security Documents provided however that none of the Agent or any of the Lenders shall be entitled to terminate or treat this Agreement or any of the other Security Documents as having been repudiated otherwise than in circumstances which constitute an Event of Default. |
17 | Counterparts | |
This Agreement may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. | ||
18 | Changes to the Lenders |
18.1 | Assignments and transfers by the Lenders | ||
Subject to this Clause 18, a Lender (the Existing Lender ) may: |
18.1.1 | assign any of its rights under the Security Documents; or | ||
18.1.2 | transfer by novation any of its rights and obligations under the Security Documents, |
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18.2 | Conditions of assignment or transfer |
18.2.1 | The consent of the Agent and the Borrower is required for an assignment or transfer by a Lender, unless the assignment or transfer is to another Lender or an Affiliate of a Lender. The said consent of the Borrower may not be unreasonably withheld or delayed and shall not be required if an Event of Default or a Possible Event of Default has occurred and is continuing. | ||
18.2.2 | An assignment will only be effective on: |
(a) | receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the Agent and the other Lenders as it would have been under if it was an Original Lender; and | ||
(b) | performance by the Agent of all know your customer or other checks relating to any person that it is required to carry out in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender. |
18.2.3 | A transfer will only be effective if the procedure set out in Clause 18.5 is complied with. | ||
18.2.4 | If: |
(a) | a Lender assigns or transfers any of its rights or obligations under the Security Documents or changes its Lending Branch; and | ||
(b) | as a result of circumstances existing at the date the assignment, transfer or change occurs, the Borrower would be obliged to make a payment to the New Lender or Lender acting through its new Lending Branch under Clause 7, |
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18.3 | Assignment or transfer fee | ||
The Existing Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of three thousand Dollars (USD3,000). | |||
18.4 | Limitation of responsibility of Existing Lenders |
18.4.1 | Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: |
(a) | the legality, validity, effectiveness, adequacy or enforceability of the Security Documents or any other documents; | ||
(b) | the financial condition of the Borrower; | ||
(c) | the performance and observance by any Obligor of its obligations under the Security Documents or any other documents; or | ||
(d) | the accuracy of any statements (whether written or oral) made in or in connection with any Security Document or any other document, |
18.4.2 | Each New Lender confirms to the Existing Lender, the Agent and the other Lenders that it: |
(a) | has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Security Document; and | ||
(b) | will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Security Documents or any Commitment is in force. |
18.4.3 | Nothing in any Security Document obliges an Existing Lender to: |
(a) | accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 18; or | ||
(b) | support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Security Documents or otherwise. |
18.5 | Procedure for transfer |
18.5.1 | Subject to the conditions set out in Clause 18.2, a transfer is effected in accordance with Clause 18.5.3 when the Agent executes an otherwise |
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duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to Clause 18.5.2, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate. | |||
18.5.2 | The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender. | ||
18.5.3 | On the Transfer Date: |
(a) | to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Security Documents each of the Borrower and the Existing Lender shall be released from further obligations towards one another under the Security Documents and their respective rights against one another shall be cancelled (being the Discharged Rights and Obligations ); | ||
(b) | each of the Borrower and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as the Borrower and the New Lender have assumed and/or acquired the same in place of the Borrower and the Existing Lender; | ||
(c) | the Agent, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent and the Existing Lender shall each be released from further obligations to each other under this Agreement; and | ||
(d) | the New Lender shall become a party as a Lender . |
18.6 | Copy of Transfer Certificate to Borrower | ||
The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate, send to the Borrower a copy of that Transfer Certificate. | |||
18.7 | Disclosure of information | ||
Any Lender may disclose to any of its Affiliates and any other person: |
18.7.1 | to (or through) whom that Lender assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this Agreement; |
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18.7.2 | with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Agreement or the Borrower; or | ||
18.7.3 | to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation, |
18.8 | Borrowers co-operation | ||
The Borrower shall co-operate fully with the Lender in relation to any assignment or transfer proposed by the Lender and shall execute, or procure the execution of, any documents which the Lender may require. |
19 | Changes to the Borrower | |
The Borrower may not assign any of its rights or transfer any of its rights or obligations under the Security Documents. | ||
20 | Reference Banks and Agent |
20.1 | Reference Banks | ||
If: |
20.1.1 | the whole of the Contribution (if any) of any Reference Bank is prepaid; | ||
20.1.2 | the Commitment of any Reference Bank is cancelled or reduced to zero in accordance with Clause 3.9 or any other relevant provision hereof; | ||
20.1.3 | a Reference Bank transfers the whole of its rights and obligations (if any) as a Lender under this Agreement; or | ||
20.1.4 | where applicable, any Reference Bank ceases to provide quotations to the Agent for the purposes of determining LIBOR, |
20.2 | Decision making |
20.2.1 | Save as expressly provided in Clause 20.2.2 or as otherwise expressly provided herein, any proposed course of action in connection with any matter requiring the consent of the Lenders under or in connection howsoever with this Agreement shall only be taken with the consent of all the Lenders including, but without limitation to the generality of the foregoing: |
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(a) | the release of the Borrower from any of its obligations hereunder provided that the Agent may agree with the Borrower the terms and conditions upon which a condition precedent that is not material, in the opinion of the Agent, may be deemed to be a condition subsequent; | ||
(b) | the amendment of any of the provisions of this Agreement; | ||
(c) | any time or other indulgence to be granted to the Borrower in respect of its obligations under this Agreement. |
20.2.2 | Proposals in connection with the following matters shall, in the absence of agreement thereon by all of the Lenders or as otherwise provided in this Agreement, be determined by the Majority Lenders: |
(a) | the making of any declaration by the Agent under Clause 12.2; | ||
(b) | the institution of any legal proceedings for the enforcement of any rights or powers whatsoever pursuant to the terms of this Agreement; | ||
(c) | any course of action whatsoever from time to time (other than the making of a demand for payment hereunder) whether of a legal or commercial nature or otherwise howsoever for the purpose of achieving a full or partial recovery of any principal, interest or other amount due and payable by the Borrower hereunder or otherwise in connection therewith following the making of a declaration by the Agent under Clause 12.2; | ||
(d) | any other matter in respect of which this Agreement expressly provides that the consent of the Majority Lenders shall be required. |
20.2.3 | Any determination of the Lenders shall be ascertained by the Agent either: |
(a) | by means of a telefax sent by the Agent to each of the Lenders in identical terms on the proposal or matter in issue; or | ||
(b) | by means of the vote of representatives of each Lender at a meeting convened by the Agent and held for the purpose of discussing (inter alia) such proposal or matter in issue. |
(i) | where a decision of the Lenders is sought by the Agent by means of a telefax sent in accordance with paragraph (a) above and PROVIDED THAT the Agent verifies forthwith by telephone with each relevant Lender that it has received such telefax in good order, then the Agent may in its telefax: |
(1) | recommend a proposed course of action to be taken by the Lenders; and |
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(2) | specify a time limit (of not less than three (3) Business Days) within which the Lenders are required to respond to the Agents recommendation |
(ii) | where the approval of the Majority Lenders is required in respect of any matter, the approval shall be deemed to have been given as soon as the Agent receives the requisite number of votes in favour of the proposal so that the Agent may act on the basis of such votes without having to wait for the response of (or to give any notification to) any other Lender who has yet to reply to the Agent. |
20.3 | The Agent |
20.3.1 | Each of the Lenders hereby appoints the Agent to act as its agent under this Agreement and the Security Documents with such rights, powers and discretions as are expressly delegated to the Agent hereunder and thereunder. | ||
20.3.2 | The Agent shall: |
(a) | promptly inform the Lenders of the contents of any notice or request received by it from the Borrower under this Agreement (whether such notice or request is addressed to the Agent alone or the Agent on behalf of the Lenders) and of any information delivered to it pursuant to Clause 10.2 and of any other matters which the Agent considers material; | ||
(b) | promptly deliver to the Lenders copies of any accounts and certificates delivered to it pursuant to Clause 10.2 and, as soon as reasonably practicable, copies of the documents delivered in satisfaction of the requirements of Schedule 3; | ||
(c) | promptly inform the Lenders in reasonable detail of any exercise by it of any of the rights, powers and/or discretions vested in it hereunder (but without the Agent being under any obligation to give prior notice to the Lenders of any such exercise); | ||
(d) | promptly notify the Lenders of the occurrence of any Event of Default or any other default by the Borrower in the due performance of or compliance with its material obligations under this Agreement of which the Agent has actual knowledge or actual notice and the occurrence of which the Agent has verified; | ||
(e) | if directed by the Majority Lenders, exercise (or refrain from exercising) any right, power or discretion vested in it hereunder in accordance with the directions (subject to Clause 20.2.1) of the Majority Lenders provided, however, that it may refrain from |
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acting in accordance with any such directions until it has received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, expenses (including legal fees) and liabilities which it will or may expend or incur in complying with such directions and for this purpose the Agent shall make a demand for such security addressed to all the Lenders; | |||
(f) | receive from the Borrower all payments of principal, interest and other moneys expressed to be payable to the Agent hereunder on behalf of all or any of the Lenders and shall promptly distribute the same amongst the Lenders and itself in accordance with the terms of this Agreement pending which the Agent shall hold any and all such moneys on trust for the Lenders and itself; and | ||
(g) | enter into any amendment to any of the Security Documents or grant any waiver of any obligation of any of the Obligors under any of such Security Documents if so instructed by the Lenders. |
20.3.3 | The relationship between the Agent on the one part and each Lender on the other is that of agent and principal and, except in relation to any moneys referred to in Clause 20.3.2(f) and held by the Agent pending distribution hereunder, the Agent shall not have a fiduciary relationship with or be, or be deemed to be, a trustee of or for any such party. | ||
20.3.4 | In addition to the powers expressly given to the Agent by this Agreement: |
(a) | the Lenders may give the Agent (generally or in any particular case) any powers which the Lenders consider appropriate; and | ||
(b) | the Agent has power to take any other action which it considers to be reasonably incidental or conducive to the performance of its functions under this Agreement or otherwise appropriate in the context of those functions, including the exercise of any powers given to it by the Lenders. |
20.3.5 | The rights, powers and discretions vested in the Agent by this Agreement shall only be exercised by the Agent in accordance with the instructions of the Majority Lenders or (if so required in accordance with the provisions of Clause 20.2.1) the Lenders provided however that the Agent shall be entitled (but not bound) to exercise or refrain from exercising any such right, power or discretion without the directions of the Majority Lenders or the Lenders (as the case may be) if the Agent believes that the immediate exercise of such right, power or discretion is necessary or desirable to protect the interests of the Lenders under or in respect of this Agreement. | ||
Where any right, power or discretion is vested in the Agent under this Agreement but is expressed as being exercisable in accordance with the directions of the Lenders or the Majority Lenders, such right, power or discretion shall not be exercised by the Agent without the lawful directions of the Lenders or the Majority Lenders (as the case may be). |
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20.3.6 | Notwithstanding anything to the contrary expressed or implied herein, the Agent shall not: |
(a) | be bound to enquire as to the occurrence or otherwise of any Event of Default or as to the performance by the Borrower of its obligations under this Agreement; | ||
(b) | be bound to disclose to any other person any information relating to the Borrower if such disclosure would or might in its opinion constitute a breach of any law or regulation or be otherwise actionable at the suit of any person; | ||
(c) | have any responsibility to the Lenders or each other for: |
(i) | the financial position, creditworthiness, affairs or prospects of the Borrower; | ||
(ii) | the performance or non-performance howsoever by the Borrower of any of its obligations hereunder; | ||
(iii) | the due execution, effectiveness, genuineness, validity or enforceability of this Agreement or any document relating hereto or any filing or recording thereof or the taking of any other action whatsoever and howsoever in connection therewith or the collectability of any sum due hereunder; | ||
(iv) | any computations and/or information supplied to the Lenders by the Agent in reliance upon which the Lenders have entered into this Agreement; |
(d) | be under any liability whatsoever for any consequence of relying on: |
(i) | any written communication or document believed by it to be genuine or correct and to have been communicated or signed by the person by whom it is purported to have been communicated or signed; or | ||
(ii) | the advice or opinions of any professional advisers selected by it; |
(e) | be under any duty to account to any Lender or the Agent for any sum received by it for its own account or the profit element of any such sum; or | ||
(f) | be under any obligation other than those for which express provision is made herein. |
20.3.7 | The Agent may: |
(a) | carry out its duties hereunder through such officers, directors, employees, consultants or independent agents as it may in its unfettered discretion think fit; |
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(b) | assume that no Event of Default has occurred and that the Borrower is not in breach of its obligations under this Agreement unless the Agent has actual knowledge or actual notice to the contrary; | ||
(c) | engage and pay for the advice or services of any internal or external lawyers, accountants, surveyors or other experts whose advice or services may to it seem necessary, expedient or desirable and rely upon any advice so obtained; | ||
(d) | rely as to any matters of fact which might reasonably be expected to be within the knowledge of the Borrower upon a certificate signed by or on behalf of the Borrower; and | ||
(e) | rely upon any communication or document believed by it to be genuine. |
20.3.8 | It is understood that each of the Lenders has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, creditworthiness, condition, affairs, status and nature of the Borrower and, accordingly, each of the Lenders warrants to the Agent that it has not relied and will not rely on the Agent: |
(a) | to check or enquire on its behalf into the adequacy, accuracy or completeness of any information provided by the Borrower in connection with this Agreement; or | ||
(b) | to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Borrower. |
20.3.9 | Subject to the terms of this Agreement, this Agreement shall be serviced, supervised and administered by the Agent in the ordinary course of its business and in accordance with its usual practices. In performing its duties and functions hereunder, the Agent shall exercise the same care as it normally exercises in making and administering loans for its own account, but assumes no further responsibility in respect of such performance. | ||
20.3.10 | The Agent shall not be under any liability as a result of taking or omitting to take any action in relation to this Agreement save in the case of gross negligence or wilful misconduct and the Lenders will not assert or seek to assert against any director, officer or employee of the Agent any claim they might have against any of them in respect of the matters referred to in this Clause 20.3.10. | ||
20.3.11 | The Agent (or any officer thereof) shall not be precluded by reason of so acting from underwriting, guaranteeing the subscription of or subscribing for or otherwise acquiring, holding or dealing with any debentures, shares or securities whatsoever of the Borrower or from entering into any contract or financial or other transaction with or from engaging in any banking or other business with the Borrower and shall not be liable to |
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account for any profit made or payment received by it thereby or in connection therewith. |
20.4 | Retirement and replacement of the Agent |
20.4.1 | The Agent may retire at any time without assigning any reason by giving to the Borrower, the Agent and the Lenders not less than thirty (30) days notice of its intention to do so. Unless the Agent in its notice of retirement nominates any of its associated companies to be its successor, the successor Agent may be appointed by the Majority Lenders (with the prior written consent of the Borrower, such consent not to be unreasonably withheld or delayed) during such thirty (30) day period PROVIDED THAT , should they fail to do so, the Agent may then appoint as its successor a reputable and experienced bank with an office in London. | ||
20.4.2 | If any Lender is dissatisfied with the Agent and wants it to be replaced, such Lender shall consult with the other relevant Lenders and the Borrower for a period of up to thirty (30) days to decide whether the Agent should be replaced and, if so, by whom (such replacement being one of the relevant Lenders or an associated company thereof). If at the end of such period the relevant Lenders unanimously agree that the Agent should be replaced by a particular Lender or one of its associated companies, and if the Borrower consents in writing to the identity of the proposed replacement (such consent (a) not to be unreasonably withheld and (b) not to be required if an Event of Default has occurred and is continuing), then notice shall be given by the relevant Lenders to the Agent specifying the date, being not fewer than five (5) Business Days after the date of such notice, on which the appointment of the successor Agent is, subject to Clause 20.4.4, to take effect. | ||
20.4.3 | For the purposes of this Clause 20.4: |
(a) | an associated company of the Agent and/or any Lender shall mean any company which is a holding company of the Agent and/or such Lender or a wholly-owned subsidiary of it or its parent company; and | ||
(b) | relevant Lenders means all of the Lenders other than that Lender which acts as Agent or whose associated company acts in such capacity. |
20.4.4 | Any appointment of a successor Agent under Clause 20.4.1 or Clause 20.4.2 shall take effect upon: |
(a) | the successor confirming in writing its agreement to be bound by the provisions of this Agreement; and | ||
(b) | notice thereof by the Agent and its successor (which notice, shall specify the banks to which payments to the new Agent shall be made thereafter) being given to each of the other parties to this Agreement. |
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20.4.5 | If a successor to the Agent is appointed under the provisions of this Clause 20.4: |
(a) | the outgoing Agent shall be discharged from any further obligation under this Agreement; | ||
(b) | its successor and each of the other parties hereto shall have the same rights and obligations amongst themselves as they would have had if such successor had been a party hereto in place of the outgoing Agent; | ||
(c) | Clause 20 and the other provisions of this Agreement shall remain in effect for the benefit and protection of the outgoing Agent in relation to any claim or loss which may be brought against or incurred by it in connection with or as a result of any act, omission, breach, neglect or other occurrence or matter relating to or arising out of this Agreement which took place before its resignation. |
21 | Notices |
21.1 | Mode of communication | ||
Except as otherwise provided herein, each notice, request, demand or other communication or document to be given or made hereunder shall be given in writing but unless otherwise stated, may be made by telefax. | |||
21.2 | Address | ||
Any notice, demand or other communication (unless made by telefax) to be made or delivered by the Agent to the Borrower pursuant to this Agreement shall (unless the Borrower has by fifteen (15) days written notice to the Agent specified another address) be made or delivered to the Borrower at 7665 Corporate Center Drive, Miami, Florida 33126, United States of America (marked for the attention of Ms Bonnie Biumi and the Legal Department (but one (1) copy shall suffice)). Any notice, demand or other communication to be made or delivered by the Borrower to the Agent or the Swingline Lender pursuant to this Agreement shall (unless the Agent or the Swingline Lender has by fifteen (15) days written notice to the Borrower specified another address) be made or delivered to the Agent or the Swingline Lender (as the case may be) at its Lending Branch, the details of which are set out in Schedule 1. | |||
21.3 | Telefax communication | ||
Any notice, demand or other communication to be made or delivered pursuant to this Agreement may be sent by telefax to the relevant telephone numbers (which at the date hereof in respect of the Borrower is +1 305 436 4140 (marked for the attention of Ms Bonnie Biumi) and +1 305 436 4117 (marked for the attention of the Legal Department) and in the case of the Agent or any Original Lender (including the Swingline Lender) is as recorded in Schedule 1) specified by it from time to time for the purpose and shall be deemed to have been received when transmission of such telefax communication has been completed. Each such telefax communication, if made to the Agent or any Lender (including the |
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Swingline Lender) by the Borrower, shall be signed by the person or persons authorised in writing by the Borrower and whose signature appears on the list of specimen signatures contained in the secretarys certificate required to be delivered by paragraph 2 of Part I of Schedule 3 and shall be expressed to be for the attention of the department or officer whose name has been notified for the time being for that purpose by the Agent or any Lender (including the Swingline Lender) to the Borrower. | |||
21.4 | Electronic mail | ||
Any notice, demand or other communication other than a Drawdown Notice or a Renewal Notice to be made or delivered pursuant to this Agreement may be made by electronic mail or other electronic means, if the Agent, the Borrower and/or the Lender (including the Swingline Lender): |
21.4.1 | agree that, unless and until notified to the contrary, this is to be an accepted form of communication; and | ||
21.4.2 | notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and | ||
21.4.3 | notify each other of any change to their electronic mail address or any other such information supplied by them. |
(a) | by the Agent to the Borrower or a Lender or by the Swingline Lender to the Borrower or the Agent will be effective when it is sent by the Agent or the Swingline Lender (as the case may be) unless the Agent or the Swingline Lender (as the case may be) receives a message indicating failed delivery and, if upon the senders express request, a confirmation of receipt is requested, such confirmation has been sent; and | ||
(b) | by the Borrower or a Lender (including the Swingline Lender) to the Agent will be effective only when actually received by the Agent and then only if it is addressed in such a manner as the Agent shall specify to that party for this purpose. |
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21.5 | Receipt | ||
Each such notice, demand or other communication shall be deemed to have been made or delivered (in the case of any letter) when delivered to its office for the time being or, if sent by post, five (5) days after being deposited in the post first class or express airmail (as the case may be) postage prepaid in an envelope addressed to it at that address or, if sent by electronic mail, in accordance with Clause 21.4. | |||
21.6 | Language | ||
Each notice, demand or other communication made or delivered by one (1) party to another pursuant to this Agreement or any other Security Document shall be in the English language or accompanied by a certified English translation. In the event of any conflict between the translation and the original text the translation shall prevail unless the original text is a statutory instrument, legal process or any other document of a similar type. |
22 | Governing Law | |
This Agreement shall be governed by English law. | ||
23 | Waiver of Immunity | |
To the extent that the Borrower may in any jurisdiction claim for itself or its assets immunity from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other legal process in relation to this Agreement or the other Security Documents and to the extent that in any such jurisdiction there may be attributed to itself or its assets such immunity (whether or not claimed) the Borrower hereby irrevocably and unconditionally agrees throughout the Security Period not to claim and hereby irrevocably waives such immunity to the full extent permitted by the laws of such jurisdiction. In respect of any legal action or proceedings arising out of or in connection with any of the Security Documents the Borrower hereby consents generally as a matter of procedure in relation to the waiver of immunity (but not so as to prejudice any defence which the Borrower may have on the merits of the substantive issue) to the giving of any relief or the issue of any process in connection with such legal action or proceedings including without limitation, the making, enforcement or execution against any property whatsoever (irrespective of its uses or intended uses) of any order or judgment which may be made or given in such legal action or proceedings. | ||
24 | Jurisdiction |
24.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute ). Each party to this Agreement agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary. | ||
This Clause 24.1 is for the benefit of the Lenders and the Agent only. As a result, no such party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, any such party may take concurrent proceedings in any number of jurisdictions. |
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24.2 | The Borrower may not, without the Agents prior written consent, terminate the appointment of the Process Agent; if the Process Agent resigns or its appointment ceases to be effective, the Borrower shall within fourteen (14) days appoint a company which has premises in London and has been approved by the Agent to act as the Borrowers process agent with unconditional authority to receive and acknowledge service on behalf of the Borrower of all process or other documents connected with proceedings in the English courts which relate to this Agreement. | ||
24.3 | For the purpose of securing its obligations under Clause 24.2, the Borrower irrevocably agrees that, if it for any reason fails to appoint a process agent within the period specified in Clause 24.2, the Agent may appoint any person (including a company controlled by or associated with the Agent or any Lender) to act as the Borrowers process agent in England with the unconditional authority described in Clause 24.2. | ||
24.4 | No neglect or default by a process agent appointed or designated under this Clause (including a failure by it to notify the Borrower of the service of any process or to forward any process to the Borrower) shall invalidate any proceedings or judgment. | ||
24.5 | The Borrower appoints in the case of the courts of England the Process Agent to receive, for and on its behalf service of process in England of any legal proceedings with respect to this Agreement and any other Security Document. | ||
24.6 | A judgment relating to this Agreement which is given or would be enforced by an English court shall be conclusive and binding on the Borrower and may be enforced without review in any other jurisdiction. | ||
24.7 | Nothing in this Clause shall exclude or limit any right which the Agent or a Lender may have (whether under the laws of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. | ||
24.8 | In this Clause judgment includes order, injunction, declaration and any other decision or relief made or granted by a court. |
SIGNED SEALED
and
DELIVERED
as a
DEED
|
) | PA Turner | ||
by PA
Turner
|
) | |||
for and on behalf of
|
) | |||
NCL CORPORATION LTD.
|
) | |||
in the presence of:
|
) |
72
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Theodora Kokota | ||||||
by Theodora Kokota
|
) | |||||||
for and on hehalf of
|
) | |||||||
DnB NOR BANK ASA
|
) | |||||||
as a
Mandated Lead Arranger, an Original Lender,
|
) | |||||||
the Swingline Leader and the Agent
|
) | |||||||
in the presence of:
|
Carolyn Hamilton Stephenson Hardwood | ) | ||||||
|
One St. Pauls Church Yard | ) | ||||||
|
London EC4M 8SH solicitors | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Theodora Kokota | ||||||
by Theodora Kokota
|
) | |||||||
for and on hehalf of
|
) | |||||||
CITIBANK
N.A.
|
) | |||||||
as a Mandated Lead Arranger and an Original Lender
|
) | |||||||
in the presence of:
|
Carolyn Hamilton Stephenson Hardwood | ) | ||||||
|
One St. Pauls Church Yard | ) | ||||||
|
London EC4M 8SH solicitors | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Theodora Kokota | ||||||
by Theodora Kokota
|
) | |||||||
for and on hehalf of
|
) | |||||||
COMMERZBANK
AKTIENGESELLSCHAFT
|
) | |||||||
Hamburg
Branch, Global Shipping
|
) | |||||||
as a Mandated Lead Arranger and an Original Lender
|
) | |||||||
in the presence of:
|
Carolyn Hamilton Stephenson Hardwood | ) | ||||||
|
One St. Pauls Church Yard | ) | ||||||
|
London EC4M 8SH solicitors | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Theodora Kokota | ||||||
by Theodora Kokota
|
) | |||||||
for and on hehalf of
|
) | |||||||
KRW
|
) | |||||||
as a Mandated Lead Arranger and an Original Lender
|
) | |||||||
in the presence of:
|
Carolyn Hamilton Stephenson Hardwood | ) | ||||||
|
One St. Pauls Church Yard | ) | ||||||
|
London EC4M 8SH solicitors | ) | ||||||
|
73
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Theodora Kokota | ||||||
by Theodora Kokota
|
) | |||||||
for and on hehalf of
|
) | |||||||
NORDDEUTSCHE
LANDESBANK GIROZENTRALE
|
) | |||||||
as a Mandated Lead Arranger and an Original Lender
|
) | |||||||
in the presence of:
|
Carolyn Hamilton Stephenson Hardwood | ) | ||||||
|
One St. Pauls Church Yard | ) | ||||||
|
London EC4M 8SH solicitors | ) | ||||||
|
||||||||
SIGNED
SEALED
and
DELIVERED
as a
DEED
|
) | Theodora Kokota | ||||||
by Theodora Kokota
|
) | |||||||
for and on hehalf of
|
) | |||||||
NORDEA
BANK NORGE ASA
|
) | |||||||
as a Mandated Lead Arranger and an Original Lender
|
) | |||||||
in the presence of:
|
Carolyn Hamilton Stephenson Hardwood | ) | ||||||
|
One St. Pauls Church Yard | ) | ||||||
|
London EC4M 8SH solicitors | ) | ||||||
|
74
Fax:
|
+47 22 482894 | |
Attn:
|
Mrs Solveig Nuland Knoff |
Fax:
|
+47 22 482020 | |
Attn:
|
Mr Jon Flovik | |
Email:
|
jon.flovik@dnbnor.no |
Fax:
|
+1 646 291 5051 | |
Attn:
|
Mr Philip Ziegler | |
Email:
|
philip.ziegler@citigroup.com |
Fax:
|
+49 40 3683 4068 / 2049 | |
Attn:
|
Mr Stefan Kuch / Mr Siegfried Hoffmann | |
Email:
|
stefan.kuch@commerzbank.com / | |
|
siegfried.hoffmann@commerzbank.com |
75
Fax:
|
+49 69 7431 3768/4110 | |
Attn:
|
Mr Josef Schmid / Ms Clare Dooley | |
Email:
|
josef.schmid@kfw.de / | |
|
clare.dooley@kfw.de |
Fax:
|
+49 511 361 4785 | |
Attn:
|
Mr Thomas Schramme / Mr Alexander Viets | |
Email:
|
shipping@nordlb.de |
Fax:
|
+47 22 484278 | |
Attn:
|
Mr Arne Berglund | |
Email:
|
arne.berglund@nordea.com |
76
1 | See Clause 21.4 in respect of Drawdown Notices |
77
Name and Address | Commitment to | Commitment to | ||||
Revolving Credit | Swingline Facility | |||||
Facility as a | as a Proportion | |||||
Proportion | ||||||
COMMERZBANK AKTIENGESELLSCHAFT | [**] [Confidential Treatment] | [**] [Confidential Treatment] | ||||
Hamburg Branch | ||||||
Global Shipping | ||||||
Ness 7-9 | ||||||
20457 Hamburg | ||||||
Germany | ||||||
|
||||||
Fax:
|
+49 40 3683 4068 / 2049 | |||||
Attn:
|
Mr Stefan Kuch / Mr Siegfried Hoffmann | |||||
Email:
|
stefan.kuch@commerzbank.com / | |||||
|
siegfried.hoffmann@commerzbank.com | |||||
|
||||||
KfW | [**] [Confidential Treatment] | [**] [Confidential Treatment] | ||||
Palmengartenstrasse 5-9 | ||||||
60325 Frankfurt am Main | ||||||
Germany | ||||||
|
||||||
Fax:
|
+49 69 7431 3768/4110 | |||||
Attn:
|
Mr Josef Schmid / Ms Clare Dooley | |||||
Email:
|
josef.schmid@kfw.de / | |||||
|
clare.dooley@kfw.de | |||||
|
||||||
NORDDEUTSCHE LANDESBANK
GIROZENTRALE |
[**] [Confidential Treatment] | [**] [Confidential Treatment] | ||||
Friedrichswall 10 | ||||||
30159 Hannover | ||||||
Germany | ||||||
|
||||||
Fax:
|
+49 511 361 4785 | |||||
Attn:
|
Mr Thomas Schramme / Mr Alexander Viets | |||||
Email:
|
shipping@nordlb.de | |||||
|
||||||
NORDEA BANK NORGE ASA | [**] [Confidential Treatment] | [**] [Confidential Treatment] | ||||
Middelthuns gate 17 | ||||||
Oslo | ||||||
P O Box 1166 Sentrum | ||||||
NO-0107 Oslo | ||||||
Norway | ||||||
|
||||||
Fax:
|
+47 22 484278 | |||||
Attn:
|
Mr Arne Berglund | |||||
Email:
|
arne.berglund@nordea.com |
78
FROM:
|
NCL CORPORATION LTD. | |
|
Milner House | |
|
18 Parliament Street | |
|
Hamilton HM 12 | |
|
Bermuda | |
|
||
TO:
|
[DnB NOR BANK ASA | |
|
Stranden 21 | |
|
NO-0021 Oslo | |
|
Norway] | |
|
||
|
[ DnB NOR BANK ASA | |
|
New York Branch | |
|
200 Park Avenue | |
|
31st Floor | |
|
New York, NY 10166-0396 | |
|
United States of America] |
FACILITY AGREEMENT DATED | DECEMBER 2006 (THE FACILITY AGREEMENT) | |
(i) | all of the representations and warranties contained in Clause 9 of the Facility Agreement remain true and correct; |
(ii) | no Possible Event of Default or Event of Default has occurred nor will occur with the giving of this notice; |
79
(iii) | the Interest Period shall be of [one (1) months][three (3)][six (6)] [months] [one (1) Business Days][two (2)][three (3)][four (4)][five (5)] [Business Days] duration; |
(iv) | the Drawing will be applied [in refinancing all existing indebtedness related to the Vessels][for general corporate and working capital purposes of the Borrower and its Subsidiaries][for general short term corporate purposes of the Borrower but not the repayment or prepayment of another Swingline Facility Drawing]; [and] |
(v) | [upon application of the Drawing hereby requested to be advanced in the manner hereinbefore appearing all sums owing to the existing financiers of the Vessels shall have been fully and finally repaid]. |
80
A On signing hereof |
1 | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the Borrower of its obligations under this Agreement and each of the Security Documents or if no such consents are required a secretarys certificate of the Borrower to this effect confirming that no such consents are required. | |
2 | Notarially attested secretarys certificate for the Borrower: |
2.1 | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws evidencing power to: |
2.1.1 | enter into the transactions contemplated by this Agreement and in the other Security Documents and to buy ships and enter into arrangements for the chartering and management thereof; and | ||
2.1.2 | borrow money in the amount referred to in this Agreement and as security therefor to mortgage or charge assets; |
2.2 | giving the names of the present officers and directors; | ||
2.3 | setting out specimen signatures of persons who would be authorised to sign documents or otherwise perform its obligations under the Security Documents; | ||
2.4 | giving the legal and beneficial owners of its shares and the number of shares held by each shareholder; | ||
2.5 | attaching copies of resolutions passed at a duly convened meeting of the directors authorising the borrowing of the Facility and the execution of this Agreement and such of the other Security Documents to which the Borrower is a party and the issue of any power of attorney to execute the same; and | ||
2.6 | containing a declaration of solvency as at the date of the secretarys certificate. |
3 | Where the secretarys certificate referred to in paragraph 2 of this Schedule 3 is dated more than fifteen (15) days prior to the Signing Date, a bringdown certificate, which need not be notarially attested if signed by the same person that signed the secretarys certificate referred to in paragraph 2 of this Schedule 3. |
4 | The original power of attorney issued pursuant to the resolutions referred to in paragraph 2 above, notarially attested. |
81
5 | The Disclosure Letter duly executed. |
6 | Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by each of the other Obligors of its obligations under the Security Documents to which it is a party or if no such consents are required a secretarys certificate of that Obligor to this effect confirming that no such consents are required. |
7 | Notarially attested secretarys certificate: |
7.1 | attaching a copy of its Certificate of Incorporation and Memorandum of Association and Bye-Laws evidencing power to enter into the transactions contemplated by this Agreement; | ||
7.2 | giving the names of the present officers and directors; | ||
7.3 | setting out specimen signatures of persons who would be authorised to sign documents or otherwise perform its obligations under the Security Documents; | ||
7.4 | attaching copies of resolutions passed at a duly convened meeting of the directors approving the granting and the execution of the documents whose execution is contemplated hereby, insofar as they relate to it and the issue of any power of attorney to execute the same; and | ||
7.5 | containing a declaration of solvency as at the date of the secretarys certificate. |
8 | Where the secretarys certificate referred to in paragraph 7 of this Schedule 3 is dated more than fifteen (15) days prior to the Signing Date, a bringdown certificate, which need not be notarially attested if signed by the same person that signed the secretarys certificate referred to in paragraph 7 of this Schedule 3. |
9 | The original powers of attorney issued pursuant to the resolutions referred to in paragraph 7.1 of this Schedule 3, notarially attested. |
10 | Confirmation from the Process Agent that it will act for each of the Obligors as agent for service of process in England. |
11 | Opinions from lawyers appointed by the Agent including English, Bermudan and Isle of Man lawyers as to any of the foregoing matters or otherwise as the Lenders may require in the form required by the Lenders. |
12 | A copy of: |
12.1 | the audited consolidated financial statements of the NCLC Group for the financial year ending on 31 December 2005; | ||
12.2 | the unaudited consolidated financial statements of the NCLC Group for the fiscal quarter ending on 30 September 2006; and |
82
12.3 | detailed projected consolidated financial statements of the NCLC Group for the six (6) financial years commencing with the financial year ending on 31 December 2006, which projections shall (a) reflect the forecasted consolidated financial condition of the NCLC Group after giving effect to the Facility and the related financing thereof; and (b) be prepared and approved by the chief financial officer of the NCLC Group. |
13 | Letter from the secretary of the Borrower to the Agent stating that the Borrower is and shall remain, after the advance to it of the Facility or any of it, solvent in accordance with the laws of Bermuda and the United Kingdom and in particular with the provisions of the United Kingdoms Insolvency Act 1986 (as from time to time amended) and the requirements thereof. | |
14 | Copies of all Companies Acts forms for filing of charges in Bermuda. | |
15 | Payment of all fees under Clause 14 and all expenses due under Clause 15. | |
B. | At least five (5) Business Days before the first Advance Date in respect of Tranche 1 | |
16 | Drawdown notice duly executed by the Borrower in the form of Schedule 2. | |
17 | Certified Copy of such documents as have been received by the Owners from the existing financiers of the Vessels in evidence of the existing indebtedness in respect of the Vessels. | |
18 | Financial projections of the NCLC Group for the twelve (12) month period commencing on the first day of the financial quarter of the NCLC Group in which the first Advance Date falls (including income statement, balance sheet and cash flow statement for the NCLC Group) and an outline of the assumptions supporting such budget and financial projections and details of any scheduled dry-docking of any of the vessels owned and/or operated by companies in the NCLC Group during such period, demonstrating that the Borrower will be in compliance with the financial undertakings contained in Clause 10.3 during such twelve (12) month period. | |
C | On the first Advance Date in respect of Tranche 1 | |
19 | Such evidence as the Lenders may require that the Borrower has raised a minimum of two hundred million Dollars (USD200,000,000) in paid up new equity since 30 November 2006, which amount has not been released or repaid. | |
20 | Such evidence as the Lenders may require that each of the Vessels is: |
20.1 | at least provisionally registered in the name of the relevant Owner under the Bahamian flag with a certificate of registry free from all liens and encumbrances except the relevant Mortgage and any other mortgage acceptable to the Lenders and the subject of a Co-ordination Deed; | ||
20.2 | classified with the highest classification available free of all recommendations and qualifications with Det Norske Veritas, save as disclosed to the Agent; | ||
20.3 | insured in accordance with the terms of the Security Documents; and | ||
20.4 | managed by the Manager pursuant to the relevant Management Agreement. |
83
21 | In respect of each of the Vessels: |
21.1 | copies of valid trading and other certificates; | ||
21.2 | Certified Copy of the Management Agreement; | ||
21.3 | Mortgage duly executed and lodged for registration at the Bahamas Maritime Authority in London; | ||
21.4 | Earnings Assignment duly executed; | ||
21.5 | Insurance Assignment duly executed; | ||
21.6 | Management Agreement Assignment duly executed; | ||
21.7 | Co-ordination Deed duly executed; and | ||
21.8 | Telefax confirmations from the insurance brokers for marine risks (hull and machinery) and the managers of any protection and indemnity or war risks association through whom any Insurances in respect of the Vessels have been placed that the Insurances have been placed and upon receipt of notices of assignment of the Insurances they will issue letters of undertaking in the form approved by the Lenders. |
22 | In respect of each of the Vessels, the first valuations referred to in Clause 10.17.1 providing evidence that the aggregate market value of the Vessels is not less than [**] [Confidential Treatment] Dollars [**] [Confidential Treatment]. | |
23 | Guarantees duly executed by the Owners. | |
24 | Charges duly executed in respect of the Owners. | |
25 | Opinions from Bahamian lawyers appointed by the Agent as to due registration of the Vessels and due registration of the Mortgages and from English, Bermudan and Isle of Man lawyers appointed by the Agent as to any of the foregoing matters or otherwise as the Lenders may require in the form required by the Lenders. | |
26 | From the Agents insurance advisers, a report on the Insurances for each of the Vessels and a certificate confirming that such Insurances are placed with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as should be acceptable to the Lenders and conform with the provisions of the relevant Mortgage. | |
27 | Where a secretarys certificate referred to in paragraph 2 or paragraph 7 of this Schedule 3 is dated more than ten (10) days prior to the first Advance Date, a bringdown certificate, which need not be notarially attested if signed by the same person that signed the secretarys certificate referred to in paragraph 2 or paragraph 7 (as the case may be) of this Schedule 3. | |
28 | Certified Copy of the carrier initiative agreement(s) executed pursuant to the Mortgages. | |
29 | Certified Copies of any current certificates of financial responsibility in respect of the Vessels issued under OPA. |
84
30 | Certified Copies of valid safety management certificates (or interim safety management certificates) issued to the Vessels in respect of their management by the Manager pursuant to the International Safety Management Code. | |
31 | Certified Copies of a valid document of compliance (or an interim document of compliance) issued to the Manager in respect of ships of the same type as the Vessels pursuant to the International Safety Management Code. | |
32 | Certified Copies of valid international ship security certificates issued to the Vessels in accordance with the International Ship and Port Facility Security Code adopted by the International Maritime Organisation. | |
33 | Certified Copies of valid international air pollution prevention certificates issued to the Vessels under Annex VI (Regulations for the Prevention of Air Pollution from Ships) to the International Convention for the Prevention of Pollution from Ships 1973 (as modified in 1978 and 1997) (as the same may be amended from time to time). |
34 | Copies of Companies Act forms for filing of charges in Bermuda and the Isle of Man. | |
35 | Payment of all fees due under Clause 14 and all expenses due under Clause 15. | |
D | On the first Advance Date in respect of Tranche 2 | |
36 | Such evidence as the Lenders may require that the Borrower has raised a further minimum of two hundred million Dollars (USD200,000,000) in paid up new equity and an aggregate of four hundred million Dollars (USD400,000,000) in paid up new equity since 30 November 2006, which amount has not been released or repaid. |
85
TO:
|
NCL CORPORATION LTD. | |
|
Milner House | |
|
18 Parliament Street | |
|
Hamilton HM 12 | |
|
Bermuda | |
|
||
|
DnB NOR BANK ASA | |
|
Stranden 21 | |
|
NO-0021 Oslo | |
|
Norway |
1 | Except as otherwise provided herein, the Confidential Information will be kept confidential and shall not, without NCLs prior written consent be disclosed by BANK NAME, or by its directors, officers, affiliates, agents, representatives, advisors or employees (collectively, its Representatives ), in any manner whatsoever, in whole or in part, and shall not be used by BANK NAME or its Representatives, other than for the purpose of evaluating the transaction described above. Moreover, except as otherwise provided herein, BANK NAME agrees to reveal the Confidential Information only to its Representatives who need to know the Confidential Information for the purpose of the transaction described above, who are informed by BANK NAME of the confidential nature of the Confidential Information and who shall agree to keep such information confidential in accordance with BANK NAMEs customary practices with respect to the handling of confidential information. BANK NAME shall be responsible for any breach of this Agreement by its Representatives. |
2 | Except as otherwise provided herein, without NCLs prior written consent, BANK NAME and its Representatives will not disclose to any person the fact that the Confidential |
86
Information has been made available to BANK NAME, that discussions or negotiations are taking place concerning a possible transaction relating to BANK NAME or any of the terms, conditions or other facts with respect to any such possible transaction (including the status thereof). |
3 | NCL may at any time terminate further access by BANK NAME or its Representatives to the Confidential Information and BANK NAME agrees that the Confidential Information, except for the portion of the Confidential Information which consists of analyses, compilations, studies or other documents prepared by BANK NAME or its Representatives, will be returned to NCL or destroyed, in each case, immediately upon our request, or in the event BANK NAME does not proceed with the transaction that is the subject of this Agreement, including all copies, whether electronic or otherwise, made of the Confidential Information, except that BANK NAME may keep such copies of the Confidential Information as may be required by applicable legal and regulatory requirements. No such termination will affect the obligations of BANK NAME or its Representatives hereunder, all of which obligations shall continue until such time as this Agreement terminates pursuant to paragraph 9 below. |
4 | Notwithstanding the foregoing, the term Confidential Information shall not include information that (and the terms of this Agreement shall be inoperative as to such information) (i) is or becomes generally available to the public through no breach of this Agreement by BANK NAME or its Representatives, or (ii) is in BANK NAME or its Representatives possession or becomes available to BANK NAME or its Representatives on a non-confidential basis from a source other than NCL or any of its affiliates or agents, or (iii) is otherwise available to the general public or generally known or available to the public or within the passenger cruise industry or (iv) was or is independently developed by BANK NAME or its Representatives through no breach of BANK NAMEs or its Representatives obligations hereunder. |
5 | BANK NAME understands that NCL has endeavoured to include in the Confidential Information those materials which NCL believes to be reliable and relevant for the purpose of BANK NAME evaluation, but BANK NAME acknowledges that neither NCL nor any of its affiliates nor any of its or its agents, representatives or employees make any representation or warranty as to the completeness of the Confidential Information. BANK NAME agrees that neither NCL nor any of its affiliates nor any of its or its agents, representatives or employees shall have any liability to BANK NAME or its Representatives resulting from the use or content of the Confidential Information. |
6 | Notwithstanding anything herein to the contrary, it shall not be a breach of this Agreement to disclose any Confidential Information, if such disclosure is (a) consented to in writing by NCL, or (b) made to BANK NAMEs regulatory authorities or other governmental or regulatory agencies or (c) required by law or applicable legal process, provided that, solely in the case of this clause (c), BANK NAME shall (unless prohibited by court order, law or regulation) (i) use reasonable efforts to give the earliest notice possible to NCL that such disclosure is or may be required and (ii) take reasonable measures to cooperate in protecting the confidential or proprietary nature of the Confidential Information which must so be disclosed. |
7 | Without the prior written consent of NCL, BANK NAME will not solicit any employee of NCL to become employed by BANK NAME that, to the actual and personal |
87
knowledge (and not constructive knowledge) of the BANK NAME officer, employee or representative making such solicitation, has devoted a substantial amount of effort to the underlying transaction contemplated hereby. |
8 | This Agreement may be amended, modified, superseded or waived only by a written instrument which specifically states that it amends this Agreement executed and delivered by an authorized officer for each entity to be bound by such amendment. |
9 | The term of this Agreement shall commence on the date set forth above and shall continue for a period of two (2) years from such date, except when such Confidential Information is a trade secret of NCL and is identified as such by NCL, in which case BANK NAMEs obligations to protect such Confidential Information shall be perpetual and continuing. |
10 | It is further understood and agreed that no failure or delay by NCL in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. |
11 | BANK NAME agrees that monetary damages would not be a sufficient remedy for any breach of this Agreement by BANK NAME or its Representatives, and that in addition to all other remedies, NCL shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. |
12 | This Agreement is made subject to and shall be construed under the laws of the State of Florida, without giving effect to its principles or rules regarding conflicts of laws, and the parties hereto agree that the state or federal courts situated in Miami-Dade County, Florida shall have exclusive jurisdiction to resolve any disputes with respect to this Agreement or the Confidential Information, with each party irrevocably consenting to the jurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreement or the Confidential Information, and each party hereto irrevocably waives its rights to jury trials with respect thereto. |
88
TO:
|
DnB NOR BANK ASA (the Agent ) as agent on its own behalf and for and on behalf of the Borrower, the Owners and the Lenders as each such term is defined in the Facility Agreement referred to below | |
|
||
|
ATTENTION: Mrs Solveig Nuland Knoff |
1 | The Transferor with full title guarantee transfers to the Transferee absolutely in accordance with Clause 18.1 of the Facility Agreement all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Facility Agreement and all the other Security Documents insofar as such rights and interests relate to that portion of its [Commitment][Contribution] to the Facility in an amount of [ ] Dollars (USD[ ]) out of its total [Commitment][Contribution] which at the date hereof is [ ] Dollars (USD[ ]). |
2 | By virtue of this Transfer Certificate and Clause 18.5 of the Facility Agreement, the Transferor is discharged entirely with effect from the Transfer Date from that portion of its [Commitment][Contribution] to the Facility and its obligations relating thereto to the extent of [ ] Dollars (USD[ ]) out of its total [Commitment][Contribution] at such date. |
3 | The Transferee hereby requests: |
3.1 | the Borrower, the Owners, the Agent and the Lenders to accept the executed copies of this Transfer Certificate as being delivered pursuant to and for the purposes of Clause 18.1 of the Facility Agreement; and |
89
3.2 | the Agent to execute this Transfer Certificate on behalf of itself and the other said parties pursuant to Clause 18.5 of the Facility Agreement so that this Transfer Certificate will take effect in accordance with the terms thereof on [ specify date of transfer ] [ or ] [the date on which the Agent receives a certificate signed by [the Transferor] confirming that the following conditions have been fulfilled [ specify conditions to transfer ]. |
4 | The Transferee: |
4.1 | confirms that it has received a copy of the Facility Agreement and the other Security Documents together with such other documents and information as it has required in connection with the transaction contemplated thereby; | ||
4.2 | confirms that it has not relied and will not hereafter rely on the Transferor, the Agent or the Lenders to check or enquire on its behalf into the legality, validity, effectiveness, adequacy, accuracy or completeness of the Facility Agreement or any other of the Security Documents or any other documents or information; | ||
4.3 | agrees that it has not relied and will not rely on the Transferor, the Agent or the Lenders to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Borrower or any other party to the Facility Agreement or any other of the Security Documents (save as otherwise expressly provided therein); | ||
4.4 | warrants that it has power and authority to become a party to the Facility Agreement and has taken all necessary action to authorise execution of this Transfer Certificate and to obtain all necessary approvals and consents to the assumption of its obligations under the Facility Agreement and the other Security Documents; | ||
4.5 | if not already a Lender, appoints the Agent to act as its agent as provided in the Facility Agreement and the other Security Documents and agrees to be bound by the terms of Clause 18.5 of the Facility Agreement and by all the terms of Clause 20 of the Facility Agreement. |
5 | The Transferor: |
5.1 | warrants to the Transferee that it has full power to enter into this Transfer Certificate and has taken all corporate action necessary to authorise it to do so; | ||
5.2 | warrants to the Transferee that this Transfer Certificate is binding on the Transferor under the laws of England, the country in which the Transferor is incorporated and the country in which its Lending Branch is located; and | ||
5.3 | agrees that it will, at its own expense, execute any documents which the Transferee reasonably requests for perfecting in any relevant jurisdiction the Transferees title under this Transfer Certificate or for any similar purpose. |
6 | The Transferee hereby undertakes to the Transferor and each of the other parties to the Facility Agreement that it will perform in accordance with its terms all those obligations which by the terms of the Facility Agreement will be assumed by it after the transfer contemplated by this Transfer Certificate has taken effect. |
90
7 | If a Transferor and a Transferee effect a transfer in accordance with Clause 3 of this Transfer Certificate during an Interest Period, the Agent shall make all payments which would have become due to the Transferor under the Facility Agreement during the relevant Interest Period to the Transferor, as if no such transfer had been effected by the Transferor to the Transferee, according to the percentages of the Transferors Contribution and/or Commitment transferred and retained pursuant to Clauses 1 and 2 of this Transfer Certificate, and the Transferor and the Transferee shall be responsible for paying to each other pro rata all amounts (if any) due to them from each other for such Interest Period. On and from the commencement of the immediately succeeding Interest Period, the Agent shall make all payments due under the Facility Agreement for the account of the Transferor, to the Transferor, and shall make all payments due under the Facility Agreement for the account of the Transferee, to the Transferee. This provision is for administrative convenience only and shall not affect the rights of the Transferor and the Transferee under the Facility Agreement. |
8 | None of the Transferor, the Agent or the Lenders: |
8.1 | makes any representation or warranty nor assumes any responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of the Facility Agreement or any other of the Security Documents or any document relating thereto; | ||
8.2 | assumes any responsibility for the financial condition of the Borrower or any other party to the Facility Agreement or any other of the Security Documents or any such other document or for the performance and observance by the Borrower or any other party to the Facility Agreement or any other of the Security Documents or any such other document (save as otherwise expressly provided therein) and any and all such conditions and warranties, whether expressed or implied by law or otherwise, are hereby excluded (except as aforesaid). |
9 | The Transferor and the Transferee each undertakes that it will on demand fully indemnify the Agent in respect of any claim, proceeding, liability or expense which relates to or results from this Transfer Certificate or any matter connected with or arising out of it unless caused by the Agents or the Agents gross negligence or wilful misconduct, as the case may be. |
10 | The agreements and undertaking of the Transferee in this Transfer Certificate are given to and for the benefit of and made with each of the other parties to the Facility Agreement. |
11 | This Transfer Certificate shall be governed by, and construed in accordance with, English law. |
91
The Transferor
|
||||
|
||||
SIGNED
by
|
) | |||
|
) | |||
for and on behalf of
|
) | |||
[
]
|
) | |||
in the presence of:
|
) | |||
|
||||
The Transferee
|
||||
|
||||
SIGNED
by
|
) | |||
|
) | |||
for and on behalf of
|
) | |||
[
]
|
) | |||
in the presence of:
|
) | |||
|
||||
The Agent
|
||||
|
||||
SIGNED
by
|
) | |||
|
) | |||
for and on behalf of
|
) | |||
DnB NOR BANK ASA
|
) | |||
as agent for and on behalf
|
) | |||
of itself as the Agent, the Borrower,
|
) | |||
the Owners and the Lenders
|
) | |||
in the presence of:
|
) |
Note:
|
The execution of this Transfer Certificate alone may not transfer a proportionate share of the Transferors interest in the security constituted by the Security Documents in the Transferors or Transferees jurisdiction. It is the responsibility of each individual Lender to ascertain whether any other documents are required to perfect a transfer of such a share in the Transferors interest in such security in any such jurisdiction, and, if so, to seek appropriate advice and arrange for execution of the same. |
92
93
TO:
|
DnB NOR BANK ASA | |
|
Stranden 21 | |
|
NO-0021 Oslo | |
|
Norway | |
|
||
|
Attn : Mr Jon Flovik |
|
||
Chief Financial Officer
|
||
|
||
Dated
: 20[ ]
|
94
Clause (of
|
||||||||
Facility
Agreement) |
as of [ ] |
Required Covenants
|
||||||
A>[**] [Confidential Treatment]
|
||||||||
|
(10.3.1)** | |||||||
10.3.1/ |
A>[**] [Confidential Treatment]
|
|||||||
10.3.2(b)** | Free Liquidity | A |
(10.3.2(b))**
|
|||||
10.3.2(a)
|
Consolidated EBITDA: | B | >[**] [Confidential Treatment] | |||||
|
Consolidated Debt Service | C | ||||||
10.3.3
|
Total Net Funded Debt: | D | <[**] [Confidential Treatment] | |||||
|
Total Capitalisation | E | ||||||
|
Consolidated EBITDA | |||||||
|
Consolidated Net Income
(loss) |
x | ||||||
(Deduct)/Add:
|
(Gain)/Loss on sale of assets or reserves | x | ||||||
Add:
|
Consolidated Interest
Expense |
x | ||||||
Add:
|
Depreciation and amortisation of assets | x | ||||||
Add:
|
Impairment charges | x | ||||||
(Deduct)/Add:
|
Other non-cash charges (gains) | x | ||||||
Add:
|
Deferred income tax expense | x | ||||||
|
||||||||
|
Consolidated EBITDA | x | B | |||||
|
||||||||
|
Consolidated Debt Service | |||||||
|
Principal paid/payable (excluding balloon payments, voluntary prepayments/repayments on sale/total loss of an NCLC Fleet vessel) | x | ||||||
Add:
|
Consolidated Interest Expense | x | ||||||
|
Distributions | x | ||||||
|
Rent under capitalised leases | x | ||||||
|
||||||||
|
Consolidated Debt Service | x | C | |||||
|
||||||||
|
Total Net Funded Debt | |||||||
|
Indebtedness for Borrowed Money | x | ||||||
Add:
|
Guarantees of non-NCLC Group members obligations | x | ||||||
|
||||||||
|
x | |||||||
|
||||||||
Deduct:
|
Cash Balance | (x) | ||||||
|
||||||||
|
Total Net Funded Debt | (x) | D | |||||
|
||||||||
|
Total Capitalisation | |||||||
|
Total Net Funded Debt | x | ||||||
Add:
|
Consolidated stockholders equity | x | ||||||
|
||||||||
|
Total Capitalisation | x | E | |||||
|
95
** | Evidence satisfactory to the Agent of A at all times during the relevant period shall be provided together with this statement |
96
1. | Reference is made to: | |
(i) | the bareboat charter dated 20 April 2004 (the Original Charter ) pursuant to which COL agreed to charter the Ship to NCLB; | |
(ii) | the guarantee dated 20 April 2004 (the Original Charter Guarantee ) pursuant to which NCLC agreed to guarantee to COL the due performance of the Original Charter by NCLB; | |
(iii) | the memorandum of agreement dated 1 June 2006 (the MOA ) pursuant to which COL agreed to sell the ship to Fred. Olsen Cruise Lines Pte. Ltd., or permitted nominee (the Buyer ); and | |
(iv) | the bareboat charter dated 1 June 2006 (the New Charter ) pursuant to which the Buyer agreed to charter the Ship to COL and to permit COL to sub-charter the Ship subject to certain restrictions provided for in the New Charter. | |
2. | Each of COL and NCLB hereby agrees that upon and with effect from completion of the sale of the Ship pursuant to the MOA: | |
(i) | the terms and conditions of the Original Charter will be amended and restated as set out in the attached Schedule; and | |
(ii) | the Original Charter will continue to bind each of COL and NCLB in accordance with such amended and restated terms and conditions. | |
3. | NCLC hereby: | |
(i) | approves the proposed amendment and restatement of the Original Charter; and | |
(ii) | agrees that its obligations and liabilities under the Original Charter Guarantee will continue in full force and effect after the proposed amendment and restatement of the Original Charter becomes effective. | |
4. | Each of COL, NCLB and NCLC hereby agrees that: |
(i) | the agreement (the Agreement ) constituted by the countersignatures below on behalf of NCLB and NCLC will take effect as an addendum to each of the Original Charter and the Original Charter Guarantee; | |
(ii) | except as expressly amended and restated by the Agreement, each of the Original Charter and the Original Charter Guarantee will remain in full force and effect; | |
(iii) | nothing contained in the Agreement will relieve NCLB or NCLC of any their respective obligations or liabilities under the Original Charter or the Original Charter Guarantee; | |
(iv) | if the ship is not delivered to the Buyer in accordance with the MOA, the Agreement will automatically terminate at the time and on the date when the MOA is terminated. |
By: |
Vijay Jeyaratnam
Attorney-in-fact |
NCL (Bahamas) Ltd . | NCL Corporation Ltd. | |||||||
|
||||||||
By:
|
Paul Turner
Attorney-in-fact |
By: |
Paul Turner
Attorney-in-fact |
-2-
-3-
1. | The parties have agreed that the Charter Period set out in box 21 of the Charter shall be amended to read The Vessel shall be redelivered between [**] [Confidential Treatment] . |
2. | Save as expressly provided by this Addendum No. 1, all other terms and conditions of the Charter shall remain unamended and in full force and effect. |
1. | The parties have agreed that the Charter Period set out in box 21 of the Charter shall be amended to read The Vessel shall be redelivered between [**] [Confidential Treatment] . |
2. | Save as expressly provided by this Addendum No. 1, all other terms and conditions of the Charter shall remain unamended and in full force and effect. |
1. | The parties have agreed that the Charter Period set out in box 21 of the Charter shall be amended to read The Vessel shall be redelivered between [**] [Confidential Treatment] . |
2. | Save as expressly provided by this Addendum No. 1, all other terms and conditions of the Charter shall remain unamended and in full force and effect. |
1. | The Owner may send up to 1,100 Crew on board the Vessel before the Redelivery Date always provided that |
- | subject to the other express provisions of this Addendum, the Owner shall bear all and any costs and risk resulting out or in connection with all or any Crew. Costs and expenses for the Crew are not included in the Contract Price (Clause 11.3.4), but are solely for Owners account. | ||
- | In respect of Crew Clause 14.1. of the Contract shall not apply and LWB shall only be responsible for any damage or injury caused to Crews property or Crew in case LWB or its subcontractors have acted gross negligently or wilfully and always limited to the insured amount mentioned in Clause 14.2. of the Contract which shall also apply for Crew. | ||
- | Owner shall insure the risk for any damage or injury caused by Crew to LWB and/or its subcontractors and/or third persons and shall fully indemnify and hold harmless and defend LWB from and against any and all losses except to the extent that any losses are caused directly or indirectly by the executives of LWB. | ||
- | Any delay caused by Crew in the Redelivery of the Vessel shall be treated as a Permissible Delay according to Clause 7.3 of the Contract and Clause 7.3.4 (a) is herewith amended so as to clarify that delays caused by the Crew will be deemed to be delays caused by the Owner under Clause 7.3.4 (a). | ||
- | Any damage caused by Crew is to be made good by LWB as a new order from the Owner to LWB under and subject to Clause 6.1 of the Contract. |
2. | LWB shall arrange the necessary extension of the builders risk insurance cower, including an extension of cover for the co-insured Owner in respect of the increased risk of having Crew Members on board of the Vessel before Redelivery at the time the Vessel is at the Yard and under trials. It being understood that the costs for any additional premiums shall be charged to the project costs before the final results of the project are calculated and before any resulting profits are divided equally between LWB and the Owner. |
3. | Before the Crew shall enter the Vessel the Owner and LWB shall clearly define each area to which the Crew shall have access for the purposes of training and accommodation (each a Defined Area ). For familiarisation purposes only, the Crew shall have access to all areas of the Vepssel, always provided that it shall not interfere with the Works. Before the Crew enter a Defined Area on board the Vessel, the Owner and LWB shall complete the mechanical completion procedures in relation to the Defined Area according to Clause 9.1, 9.2 and 9.3 of the Contract and a Mechanical Completion Certificate shall be signed in respect of the Components of Work in the Defined Area. | |
Without limiting the other express provisions of this Addendum and subject to the proviso to this paragraph, signature of a Mechanical Completion Certificate for each Component of Work in a Defined Area will mean that the Owner has accepted the relevant Component of Work under Clause 9.1 and that the Warranty Period according to Clause 10.1 of the Contract in respect of each such Component of Work shall have started with effect from the date of signing of the Mechanical Completion Certificate PROVIDED THAT: (i) LWB shall be Obliged successfully to complete any outstanding tests in relation to the relevant Component or Defined Area: (ii) LWB Shall be obliged to rectify any Defects in relation to the relevant Component of Work noted in the Mechanical Completion Certificate: (iii) LWB shall be obliged to rectify any Defects in the relevant Component or Defined Area discovered after signature of the Mechanical Completion Certificate but which the Owner can demonstrate were not caused by the Crew; and (iv) LWB shall be obliged to complete the remainder of the Works in accordance with the Contract. | ||
4. | The Owner shall safeguard and be responsible that |
- | the Crew shall effect and fulfil all security and safety provisions as requested by the hull underwriters, the underwriters, expert team VHT, the P&l Club and LWB; | ||
- | the Owner shall be responsible for arranging roving fire guards within the relevant Defined Areas and for controlling access to the Defined Areas and Crew access to the remainder of the Vessel, and the Crew shall give LWB and its subcontractors access to the Defined Areas for testing, defect rectification or other necessary pre-redelivery Works: |
- | the Owner shall allow and empower LWB fire guards to control the Defined Areas in addition to Owners fire guards if the same is ordered by underwriters: | ||
- | the Crew shall ensure that Owners occupation of the Defined Areas and other parts of the Vessel does not hinder any remaining Works to be carried out by LWB. |
5. | It is understood and agreed that due to the ongoing completion of the Vessel, the local fire brigade considers the Vessel to be unsafe for accommodation, but that nonetheless the Owner wishes to accommodate the Crew on board and with the adoption of certain procedures believes that the crew may be accommodated safely. The Owner undertakes to hold harmless and indemnify LWB against all costs, liabilities and losses incurred by LWB by reason of the accommodation of the Crew on board with respect to the Defined Areas and other parts of the Vessel occupied by the Crew. |
6. | Save as expressly provided in this Addendum an other terms and conditions of the Contract (and previous addenda thereto) shall remain un-amended and in full force and effect. |
7. | Words and expressions defined in the Contract shall have the same meaning when used in this Addendum. |
Signed on 28 April 2005
Mark E. Warren For and on behalf of Pride of America Ship Holding, Inc. |
||||
Signed on 18 April 2005
__________________________________ |
||||
Signature Illegible
__________________________________ |
||||
For and on behalf of
Lloyd Werft Bremerhaven GmbH |
||||
Signed on 13 May 2005
__________________________________ |
||||
Signature Illegible
__________________________________ Wolfgang van Betteray as Sachwalter of LWB |
||||
(i) | LWB has rendered a concurrent cost estimation on a monthly basis both in respect of the Casualty works and the completion Works. A copy of the concurrent cost estimation as of May 25, 2005 is attached as Annex 1, showing |
- | regarding the Casualty Works, a provisional result of [**] [Confidential Treatment] representing the full amount of the [**] [Confidential Treatment] insurance cost savings to be credited to the Owner and LWB jointly under clause 5 of the Vereinbarung, and | ||
- | regarding the completion Works, a provisional result of [**] [Confidential Treatment] in favour of the Owner (including [**] [Confidential Treatment] representing [**] [Confidential Treatment] of all scrap proceeds referred to in clause 20. (c) of Addendum No. 3); |
(ii) | in view of the current shortened business year of LWB, which, due to the Insolvency proceedings, will end on 30 June 2005, LWB will render its annual accounts by 30 August 2005. The annual accounts will be verified by the accountants of LWB by 20 September 2005, and may for the purposes of |
determining the payment due to the Owner be verified by the accountants of the Owner; | |||
(iii) | in view of the subsequent shortened business year of LWB ending on 31 December 2005, LWB will render its subsequent annual accounts by 30 March 2006 which will be verified by the accountants of LWB by 30 April 2006 and may for the purposes of determining the payment due to the Owner be verified by the accountants of the Owner; and | ||
(iv) | based on Annex 1, the annual account of the business year ending 30 June 2005 and the annual account of the business year ending 31 December 2005, the accountants of LWB and the Owner shall jointly determine the exact sum payable to the Owner in accordance with clause 16. (a) and 17. (c) of Addendum No. 3; | ||
(b) | Regarding payments due to the Owner under clause 20. (c) of Addendum No. 3, the scrap revenues are included in the concurrent cost estimation and this position is therefore part of the result under 1 (a) (i). |
1.2. | The provisional result of [**] [Confidential Treatment] regarding the completion of Works referred to in clause 1.1.(a) (i) of this Addendum No. 5 has been determined without computing in determining such provisional result the sum of [**] [Confidential Treatment] referred to in clause 2.8. | |
The release of this sum to either party as well as any further payments made by LWB to the Owner [**] [Confidential Treatment] referred to in clause 2.6 below or further agreement will change the provisional result and any improvement of the result shall be credited at [**] [Confidential Treatment] to the Owner, and any reduction of the result shall be reimbursed by the Owner to LWB in an amount corresponding to [**] [Confidential Treatment] of the reduction. | ||
1.3. | Payment of the sums referred to in paragraphs 1.1 and 1.2 above shall be made as follows: | |
(a) | LWB shall make an advance payment on the amount due under clause 16 (a) of Addendum No. 3 in the amount of [**] [Confidential Treatment] at redelivery of the Vessel, which amount shall then be deducted from the Casualty Compensation. |
(b) | LWB shall make payment of the amount due under clause 16 (b) of Addendum No. 3, as soon as the full and final settlement regarding the Casualty Works has been achieved with VHT and the insurers and the final instalment has been paid, assumed for the end of July 2005, which amount shall then be deducted from the Casualty Compensation. | |
(c) | The remaining funds due to the Owner under clause 16. (a) shall be paid by LWB to the Owner as soon as the joint determination referred in clause 1. (a) (iv) above has been completed, such further payments to reduce the Casualty Compensation accordingly. |
2. | Works and other matters outstanding at redelivery |
2.1 | The Works referred to in the attached Annex 2 will not be completed as at redelivery and LWB hereby agree, at their risk and expense (and without any impact on the profit share calculations referred to in clause 1 above) to complete all such Works to the Owners satisfaction fully in accordance with the Contract and the Specification as soon as practicable after redelivery. In the limited time available for redelivery it has not been possible for the parties technical representatives to verify the accuracy and completeness of Annex 2. The parties therefore agree that they will work closely together and in good faith in order to verify and, as necessary, amend or supplement and/or reduce Annex 2 as soon as reasonably practicable after redelivery in order to ensure that Annex 2 reflects the actual position as at redelivery. | |
2.2 | Without prejudice to clause 2.1 above, if (a) by [**] [Confidential Treatment] any of the Works referred to in the attached Annex 3 shall not have been completed to the Owners satisfaction in accordance with the Contract and the Specification or any of the remaining Tests and Trials shall not have been passed successfully or any of the certificates and other documents to be issued by any of the Classification Bodies or Regulatory Bodies shall not have been issued or shall have been issued subject to any conditions, recommendations or other restrictions and (b) by reason of any of the foregoing the Vessel is not ready to enter continuous fare paying passenger service by midnight (Vessel local time) on [**] [Confidential Treatment] then from such time and until the Vessel does enter fare paying passenger service LWB shall be liable to pay the Owner from time to time on demand by way of agreed liquidated damages and not as a penalty liquidated damages at the rates and for the periods specified in clause 12.1.3 of the Contract (but |
without the eight days grace period provided for in that clause) for each day (and pro rata for each part of a day) during such period provided however that the total amount payable by LWB under this clause 2.2 and clause 2.6 (b) (i) [**] [Confidential Treatment]. For the avoidance of doubt, this provision does not relieve LWB of its obligation to pay Casualty Compensation under Addendum No. 3. With reference to item 5 # 124 and 132 of the USCG Worklist in Annex 3, the Owner is required to provide three additional licensed engineers to provide a continuous watch to respond to alarms in respect of the machinery automation system and three additional electrical bridge officers to provide a continuous match in respect of the ship security alert systems [**] [Confidential Treatment]. | ||
2.3 | Pending completion of the Works referred to in Annex 3 in accordance with clause 2.2, the Owner may withhold the sum of [**] [Confidential Treatment] from the final instalment of the Contract Price. Such sum will be placed in an escrow account with HSBC Bank plc in London or another mutually acceptable bank in London as soon as practicable after redelivery and on terms that it will be released only upon joint written instructions of the parties duly authorised representatives. The parties will promptly provide the relevant bank with ail such information and documentation as it may require to open the escrow account pursuant to this clause. The parties agree that as soon as the Works referred to in Annex 3 have been completed to Owners satisfaction in accordance with the Contract and the Specification, all remaining Tests and Trials have been passed successfully, and all certificates and other documents have been issued free of conditions, recommendations so that the Vessel is ready to enter continuous fare paying passenger service the Owner will join with LWB in instructing HSBC to release the principal amount of the escrowed funds to LWB less the aggregate total amount of any liquidated damages payable by LWB under clause 2.2 which amount shall be released to the Owner. [**] [Confidential Treatment]. | |
2.4 | In order to complete the Works referred to in clauses 2.1 and 2.2 above LWB will, at its sole risk and expense (and without any impact on the profit share calculations referred to in clause 1 above) arrange for up to [**] [Confidential Treatment] workers to travel with the Vessel to New York. At all times and in all respects such workers shall be deemed to be employees of LWB who shall be fully and directly responsible for and who shall from time to time on demand indemnify the Owner fully against all liabilities in relation to death or injury to any such workers or the loss, damage or destruction of any of their property save only |
to the extent that any such liability arose as a direct result of wilful default or gross negligence on the part of the Owner. LWB will arrange and pay for the repatriation from New York of the workers referred to above. | ||
2.5 | Without prejudice to LWBs obligations under clauses 2.2 above, if the Owner in its free discretion agrees that any of the relevant Works may be completed by LWB after [**] [Confidential Treatment], LWB shall ensure that all such Works shall be planned and executed with all due despatch after [**] [Confidential Treatment] without any interruption to the Vessels service and without adversely affecting the convenience and comfort of the Vessels passengers. | |
2.6 |
(a) | There are open issues between the parties in relation to: [**] [Confidential Treatment]. |
the parties agree to negotiate with one another in good faith in order to resolve their disagreements in relation to these issues as soon as practicable after redelivery of the Vessel provided always that if it is not possible for the parties to resolve their disagreements in relation to such issues by the due date for payment to LWB of the sum payable to it under clause 2.3 above then the parties may refer such matters to arbitration in London pursuant to clause 22 of the Contract. |
(i) | in relation to the matters referred to in (a) (i) above, and notwithstanding redelivery of the Vessel, the Owner shall be entitled to claim the costs of (a) all necessary materials, installation and modification works; (b) all necessary dry dock costs; (c) all fuel and port costs incurred in moving the Vessel from her service berth to the dry dock, in carrying out all necessary sea trials, and in moving the Vessel back to her service berth; (d) all attendance costs of representatives of the Classification Bodies and other persons who may be required to attend the Vessel in connection with the remedial works and related trials; (e) and liquidated damages at the rate of [**] [Confidential Treatment] per day (and pro rata) for each day (or part of a day) during which the Vessel is out of service on account of the remedial works, dry docking etc; | ||
(ii) | the remedial works and dry docking may be carried out where and when most convenient to the Owners scheduled service for the Vessel and in order to minimise disruption to such service; | ||
(iii) | the Warranty Period referred to in clause 10.1 of the Contract will continue until [**] [Confidential Treatment] from the due date for payment of the sums payable to LWB under clause 2.3 above. The Warranty Period shall apply to works in relation to the matters referred to in (a) (i) above and shall continue until [**] [Confidential Treatment] from the date of completion of such works provided that (without prejudice to the Warranty Period for the equipment already installed in the Vessel) in the case of the new propellers the [**] [Confidential Treatment] Warranty Period will commence when they are ready to be installed on the Vessel; and | ||
(iv) | the provisions of clause 10 of the Contract do not apply to the Owners claims in respect of the matters referred to in paragraphs (i) to (iv) above. | ||
For the avoidance of doubt, the Owners right to make any recovery from LWB in relation to the
matters referred to 2.6. (a) shall be subject to and conditional upon either LWB accepting
liability for such matters or such liability being determined [**]
[Confidential Treatment].
|
2.7 | By accepting redelivery of the Vessel the Owner shall not be deemed to have waived any of its rights which may arise (or which may have arisen) at any time under and in connection with the Contract in respect of any of the matters referred to in paragraphs 2.2 and 2.6 above, all of which rights are fully reserved. | |
2.8 | The parties have agreed that, as security for the Owners disputed claims under clause 2.6 (a) (i) above, the Owner may withhold [**] [Confidential Treatment] which sum is to be paid as soon as practicable after redelivery into an escrow account opened and held by HSBC Bank plc in London or such other bank in London as is mutually acceptable to both parties and on terms that all payments from the escrow account shall be made only upon either the joint written instructions of the duly authorized representatives of both parties or in accordance with a binding arbitration award obtained in the arbitration proceedings referred to in clause 2.6. Interest on the escrowed funds will follow the agreement of the parties or the award of the arbitration tribunal. The parties will provide the relevant bank with ail such information and documentation as it may require to open the escrow account pursuant to this clause. LWB and its Shareholders (as defined in the Memorandum of Agreement made between LWB, the Owner, the Shareholders and KfW on or about 1 July 2004 (the MoA) further agree that: |
(i) | if and to the extent that LWB accept liability or are adjudged to be liable to the Owner [**] [Confidential Treatment] and such liability exceeds the amount recoverable by the Owner from the escrowed funds and LWB are unable to pay the excess then subject to the following proviso the amount of the Owners claim for Casualty Compensation referred to in the MoA shall be increased by the amount of such excess up to a cap of [**] [Confidential Treatment] provided that such cap is solely for the purposes of fixing the amount of the Owners claims that are secured by the securities referred to in (ii) below and shall not cap the amount of the Owners claim against LWB; | ||
(ii) | by no later than [**] [Confidential Treatment] LWB and the Shareholders (as defined in the MoA) shall at their cost procure that the Owners claim for Casualty Compensation (as the same may be increased pursuant to the provision of (i) above) is directly secured on an in rem basis to the Owners satisfaction by granting the same securities to the Owner as to KfW and the Banks (as defined in the MoA) for the Loan (also defined in the MoA) on the basis that such securities would be subordinate to and rank directly after the interest of KfW and the Banks under |
their existing securities subject always and without prejudice to the obligations
of KfW and the Banks under and in connection with the MoA.
|
2.9 | Pending agreement of the parties or [**] [Confidential Treatment] for the matters referred to in clause 2.6 (a) (i), LWB and the Owner will work closely together in order to plan and timetable the necessary remedial works, with LWB taking the lead role vis-a-vis the manufacturers of the relevant equipment provided always that LWB shall obtain the prior written approval of the Owner in relation to all material decisions in connection with such works including, without limitation, the design, location and timing of such works. LWB shall pay for the necessary materials, works and dry-docking charges. If they accept liability [**] [Confidential Treatment] for such costs and charges and the sum total of the amounts recoverable by the Owner under clause 2.6 (b)(i) above shall be less than the funds standing to the credit of the escrow account, the relevant amount due to the Owner shall be released to the Owner and the balance shall be released to LWB. Alternatively if the Owner accepts liability or is adjudged to be liable for such costs and charges then the funds (including interest) standing to the credit of the escrow account shall be released to LWB and in addition the Owner will reimburse LWB for the amounts already paid by it on account of such costs and charges. | |
2.10 | NCL Corporation Ltd guarantees and undertakes to ensure that the sums referred to in clauses 2.3 and 2.8 above (which sums are presently held on deposit by HSBC Bank plc in London) will continue to be held by HSBC Bank plc until the escrow accounts referred to in those clauses have been opened and will then cause such sums to be paid to such accounts pursuant to clauses 2.3 and 2.8. | |
2.11 | The Final Completion Certificate and the Protocol of Redelivery shall be in all respects subject and subordinate to the provisions of this Addendum. | |
3. | Save as expressly provided in this Addendum all other terms and conditions of the Contract (and previous addenda thereto), including but not limited to clause 17 (c) of Addendum No. 3, shall remain unamended and in full force and effect. By their signature of this Addendum each of the Owner, LWB and the Sachwalter fully and unconditionally affirm the Contract as amended by this Addendum. |
4. | Words and expressions defined in the Contract shall have the same meaning when used in this Addendum. |
Signed on 7/6/2005 by:
|
Signed on 7/6/2005 by: | |||||
|
||||||
/s/ PA Turner
|
/s/ PA Turner | |||||
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For and on behalf of
|
For and on behalf of | |||||
Pride of America Ship Holding Inc.
|
NCL Corporation Ltd. | |||||
|
||||||
Signed on 7/6/2005 by:
|
Signed on 07/06 2005 by: | |||||
|
||||||
/s/ [ILLEGIBLE]
|
/s/ [ILLEGIBLE] | |||||
|
||||||
For and on behalf of
|
For and on behalf of | |||||
Lloyd Werft Bremerhaven GmbH
|
Wolfgang van Betteray
as Sachwalter of LWB |
|||||
|
||||||
Signed on 7/6/2005 by:
|
Signed on 7/6/2005 by: | |||||
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||||||
/s/ [ILLEGIBLE]
|
/s/ [ILLEGIBLE] | |||||
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||||||
For and on behalf of
|
For and on behalf of | |||||
L.P.S. Dienstleistungs- und
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W.L. Werner Lüken Verwaltungs- und | |||||
Verwaltungsgesellschaft Bremerhaven
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Beteiligungs GmbH | |||||
GmbH
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Annex 1: [**] [Confidential Treatment] | ||
Annex 2: [**] [Confidential Treatment] | ||
Annex 3: [**] [Confidential Treatment] |
1. | The Owner asserts that LWB became liable to pay liquidated damages pursuant to Clause 2.2 in Addendum 5 of the Contract with effect from midnight (New York time) on [**] [Confidential Treatment]. LWB disputes this assertion. Each party reserves all of its rights and remedies in relation to this dispute and agrees that the making of this Addendum shall be without prejudice to all such rights and remedies. | |
2. | The Vessel is scheduled to enter continuous fare paying passenger service in Miami on [**] [Confidential Treatment] for a cruise (the first cruise) from Miami to Los Angeles. However, as at the date of this Addendum, the Works to be performed by LWB under the Contract in relation to [**] [Confidential Treatment] have not yet been completed to the Owners satisfaction in accordance with the Contract and the Specification. The parties disagree about the number of cabins affected by [**] [Confidential Treatment]. LWB accept that [**] [Confidential Treatment] cabins cannot be used for continuous fare paying passenger service by reason of [**] [Confidential Treatment]. However, the Owner has reason to believe that, after the Vessel enters fare paying passenger service, [**] [Confidential Treatment] may affect other cabins and spaces in the Vessel. In order to enable the Owner to put the Vessel into partial fare paying passenger service on [**] [Confidential Treatment], the parties have agreed that LWB shall pay liquidated damages to the Owner in accordance with the following provisions:- |
(i) | With effect from commencement of the first cruise on [**] [Confidential Treatment] until the time on the date when the cause and effects of the [**] [Confidential Treatment] in [**] [Confidential Treatment] the affected cabins referred to above have been permanently remedied, and when such permanent remedy has been proved by all necessary tests, to the Owners satisfaction in accordance with the Contract and the Specification LWB shall pay the Owner liquidated damages at the rate of [**] [Confidential Treatment],-per day (and pro rata for each part of a day). This rate represents [**] [Confidential Treatment]% of a per day rate of [**] [Confidential Treatment], this being the % of the Vessels cabin capacity agreed by LWB (as at the date of this Addendum) to be unusable by reason of [**] [Confidential Treatment]. | ||
(ii) | All necessary tropical climate inspections, tests and trials of the [**] [Confidential Treatment] will be carried out, at the times and in accordance with the procedures already agreed between the technical representatives of the Owner and LWB, during the first cruise while the Vessel is transiting the Panama Canal. If such tropical inspections, tests and trials prove that other cabins (in addition to [**] [Confidential Treatment] the cabins referred to at (i) above) or other spaces in the Vessel are affected by [**] [Confidential Treatment], the liquidated damages payable by LWB for the duration of the first cruise and each subsequent fare paying passenger cruise shall be increased to reflect the % of the Vessels cabin capacity and other spaces that are in fact affected by the [**] [Confidential Treatment] until the cause and effects of the [**] [Confidential Treatment] in the affected cabins and other spaces have been permanently remedied, and until such permanent remedy has been proved by all necessary inspections tests |
and trials, to the Owners satisfaction in accordance with the Contract and the Specification provided however that, at the commencement of each subsequent fare paying passenger cruise, the liquidated damages rate per day (and pro rata) for such cruise shall be reduced proportionately to reflect the number of cabins and other spaces that were proven, to the Owners satisfaction in accordance with the Contract and the Specification, to have ceased to be affected by [**] [Confidential Treatment] during or after completion of the previous fare paying passenger cruise. |
[**] [Confidential Treatment] |
3. | Directly following signature of this Addendum on behalf of the parties, the Owner and LWB will consult with one another in good faith with a view to agreeing the nature, extent and timing of the corrective works to be carried out by LWB (at their sole risk and expense) in order to permanently remedy the causes and effects of all [**] [Confidential Treatment] to the Owners satisfaction in accordance with the Contract and the Specification provided always that such works shall be planned and carried out with all due despatch, without any interruption to the Vessels service and without affecting the comfort or convenience of the Vessels passengers. | |
4. | Notwithstanding Clause 3 above, LWB agree that if the causes and effects of all [**] [Confidential Treatment] shall not have been permanently remedied, and that such permanent remedy shall not have been proved by all necessary inspections tests and trials, to the Owners satisfaction in accordance with the Contract and the Specification by completion of the first cruise, the Owner shall be entitled (without prejudice to its other rights under the Contract) to arrange for corrective works to be carried out by their own contractors and charged to LWB under and in accordance with Clauses 10.9 and 10.10 of the Contract. | |
5. | LWB acknowledge and agree that [**] [Confidential Treatment] cabins [**] [Confidential Treatment], that this incident constitutes a Defect for which LWB is responsible under Clause 10 of the Contract, and that the Owner may bring a claim in respect of such Defect under and in accordance with Clauses 10.9 and 10.10 of the Contract. |
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6. | For the avoidance of doubt this Addendum does not alter, excuse, relieve or reduce any of the obligations and liabilities of LWB or LWBs Shareholders to the Owner under and in connection with Addendum 5 (including LWBs obligation to complete all outstanding Annex 2 and Annex 3 Works with all due despatch in accordance with the other provisions of Addendum 5) or any other provisions of the Contract (including LWBs guarantee and warranty obligations under Clause 10 of the Contract). Accordingly, save as expressly provided in this Addendum all other terms and conditions of the Contract (and all previous addenda thereto), including but not limited to Clause l7(c) of Addendum No. 3, shall remain unamended and in full force and effect. By their signature of this Addendum each of the Owner, LWB and the Sachwalter fully and unconditionally affirm the Contract as amended by this Addendum. | |
7. | Words and expressions defined in the Contract shall have the same meaning when used in this Addendum. |
Signed
on 25 June, 2005 by:
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Signed on 25 June, 2005 by: | |
/s/
Colin Veitch
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/s/ Werner Luken | |
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/s/
Colin Veitch
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/s/ Werner Luken | |
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For and on behalf of
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For and on behalf of | |
Pride of America Ship Holding Inc.
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Lloyd Werft Bremerhaven GmbH | |
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Signed on 25 June, 2005 by:
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Signed on 25 June, 2005 by: | |
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/s/ Werner Luken | |
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For and on behalf of
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For and on behalf of | |
Wolfgang van Betteray
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W.L. Werner Lüken Verwaltungs-und | |
As Sachwalter of LWB
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Beteiligungs GmbH | |
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Signed on 25 June, 2005 by:
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For and on behalf of L.P.S.
Dienstleistungs-und
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Verwaltungsgesellschaft Bremerhaven
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GmbH
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/s/
Werner Luken
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1. | The date specified in the first line of Clause 1.1 of Article 7 of the Contract is hereby amended to read 12 April 2006. | |
2. | The date specified in the last line of Clause 2.1(i) of Article 9 of the Contract is hereby amended to read 12 April 2006. |
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1. | The date specified in the first line of Clause 1.1 of Article 7 of the Contract is hereby amended to read 28 November 2006. | |
2. | The date specified in the last line of Clause 2.1 (i) of Article 9 of the Contract is hereby amended to read 28 November 2006. |
Clause | Page | |||
Article 1: Subject Matter Of Contract
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1 | |||
1. Agreement To Build, Sell And Purchase
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1 | |||
2. Description Of The Ship
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2 | |||
3. Specification And Plans
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3 | |||
4. Classification
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4 | |||
5. Subcontracting And Makers List
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6 | |||
6. Buyers Supplies
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8 | |||
7. Builders Tally Of Buyers Supplies
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10 | |||
Article 2: Supervision
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12 | |||
1. Supervisor
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12 | |||
2. Planned Programme And Plan Approval
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13 | |||
3. Work Approval
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15 | |||
4. Technical Disputes
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16 | |||
Article 3: Modifications
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17 | |||
1. Modifications
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17 | |||
2. Classification And Regulatory Changes
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18 | |||
3. Substitution Of Parts
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19 | |||
Article 4: Title And Insurances
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20 | |||
1. Title, Risk And Encumbrances
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20 | |||
2. Insurances
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3. Loss Or Damage
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22 | |||
Article 5: Permissible Delays
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24 | |||
1. Extension Of Time For Work
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24 | |||
2. Delay Notices
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26 | |||
Article 6: Tests And Liquidated Damages
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28 | |||
1. Tests
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28 | |||
2. Liquidated Damages
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31 | |||
Article 7: Delivery And Guarantee
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37 | |||
1. Delivery And Acceptance
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37 | |||
2. Guarantee
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39 | |||
Article 8: Contract Price And Payment Terms
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44 | |||
1. Contract Price
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44 |
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Clause
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(1) | AKER YARDS S.A. , a company organised and existing under the laws of France and having its principal office at Avenue Bourdelle B.P. 90180, 44613 Saint-Nazaire Cedex, France (the Builder ); and | |
(2) | F3 ONE, LTD. , a company incorporated in Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the Buyer ). |
1. | AGREEMENT TO BUILD, SELL AND PURCHASE | |
1.1 | On and subject to the express provisions of this Contract, the Plans and the Specification:- |
(i) | the Builder shall: |
(a) | design, engineer, build, launch, equip and outfit the passenger cruise ship more particularly described in the Plans and the Specification (the Ship ) at the Shipyard, and | ||
(b) | provide all components, equipment, gear, fittings, machinery, materials, parts, plant, outfit, spares and supplies which are necessary to achieve the objects and purposes described in Clause 1.1(i) (a) (the Parts ) other than the specified supplies to be provided by the Buyer (the Buyers Supplies ), | ||
(c) | supply all operating and maintenance manuals, training materials, spares lists, plans, drawings, records and other construction documents specified in the Specification (together, the Manuals ), | ||
(d) | provide or procure the provision of all training of the Buyers employees specified in the Specification, and | ||
(e) | test, complete, finish, sell and deliver the Ship to the Buyer at Shipyard. |
(ii) | the Buyer shall purchase and accept delivery of the duly completed Ship at the Shipyard. | ||
(iii) | The Builder, as a first class shipbuilder with knowledge of the Buyers performance and quality requirements and standards as expressed in the Plans and the Specification, shall ensure that all Work shall be carried out in a good and workmanlike manner and in accordance with the highest shipbuilding and marine engineering practices and standards for new passenger cruise ships, and so that (unless specified to the contrary in the Specification) the complexity, quality of workmanship, quality of Parts, design of the cabins, public areas and other interior spaces of the Ship specified in the Specification shall not be lower than the corresponding complexity, quality and design standards of the reference ships referred to in the Specification. |
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2. | DESCRIPTION OF THE SHIP | |
2.1 | The Ship shall be a passenger cruise ship suitable for continuous year-round worldwide cruising, with the following main dimensions and characteristics: |
(i) | Main Dimensions |
(ii) | Guaranteed Deadweight | ||
The guaranteed deadweight at delivery of the Ship, determined in accordance with the Specification, in seawater of [**] [Confidential Treatment] specific gravity at a design draft of [**] [Confidential Treatment] metres (the Design Draft ), shall be not less than [**] [Confidential Treatment] metric tons (the Guaranteed Deadweight ). | |||
(iii) | Passenger Accommodation |
(iv) | Crew Accommodation |
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(v) | Life saving equipment | ||
The Ship will be designed for the transport of [**] [Confidential Treatment] passengers and [**] [Confidential Treatment] crew, and there shall be eight (8) tenders on board and lifeboats according to the Regulatory Rules for a total of [**] [Confidential Treatment] persons. | |||
(vi) | Guaranteed Service Speed | ||
With the main engines operating at [**] [Confidential Treatment]% of maximum continuous rating at the Design Draft, with a [**] [Confidential Treatment]% sea margin in trial conditions and wind / sea not exceeding 2 on the Beaufort Scale, the Ships speed as measured during the sea trials in accordance with the Specification shall be at least [**] [Confidential Treatment] knots (the Guaranteed Service Speed or GSS ). | |||
(vii) | Guaranteed Fuel Consumption | ||
The Ship shall be delivered with [**] [Confidential Treatment] main engines. The fuel consumption of each such engine during the trials conducted at the engine manufacturers test bed in accordance with the Specification shall not exceed [**] [Confidential Treatment] per shaft KW per hour in the conditions referred to in section M.1.3 of the Specification (the Guaranteed Fuel Consumption or GFC ). |
2.2 | The details of the dimensions and characteristics referred to in Clause 2.1 above, as well as the definitions and method of measurements and calculations, are as indicated in the Specification and no changes shall be made to such dimensions and characteristics without the Buyers prior written approval. | |
2.3 | The hull number of the Ship will be C33 and that number shall in accordance with Clause 1.2 in Article 4 be placed upon the Ship and the Parts during construction. | |
3. | SPECIFICATION AND PLANS | |
3.1 | The Specification and the Plans describe in detail Work standards, certain specific features of the Work and the general scope of the Work but, although the contents of the Specification and the Plans are believed by the Builder and the Buyer to be accurate, all dimensions, measurements and other details shall be independently verified and checked by the Builder. If there is any error or inconsistency in the Specification or Plans that may adversely affect the technical performance of the Ship, the Builder shall correct the same, after first notifying the Buyer in writing and obtaining the Buyers written approval (which is not to be unreasonably withheld), without any increase in the Contract Price or any extension of the Delivery Date. | |
3.2 | Save as otherwise expressly provided in this Contract, the Builder shall be solely and directly responsible for all aspects of the design, performance and quality of the Work, and the fact that any calculations, measurements, drawings, plans, test results or any other documents and data relating to the Work shall have been made, prepared or supplied by the Buyer or shown to the Buyer or approved by or on behalf of the Buyer and/or any Regulatory Authority and/or the Classification Society and/or any other |
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specified person(s) or that modifications or alterations shall have been carried out in accordance with the Buyers requirements shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) any of the Builders obligations and/or liabilities under this Contract. | ||
3.3 | All Parts: |
(i) | shall be new or (with the Supervisors prior written approval which shall not be unreasonably withheld) unused, of good quality, suitable for their intended purpose and in strict and full accordance and compliance with this Contract, the Plans and the Specification; | ||
(ii) | save only as otherwise expressly provided for in the Specification or the Plans, or as further agreed by the duly authorised representatives of the Builder and the Buyer, shall be manufactured by leading, reputable and suitably qualified and experienced makers and suppliers of equipment to the passenger cruise ship industry; and | ||
(iii) | in addition to and without derogation from the Builders obligations under paragraphs (i) and (ii) above, shall be in strict and full accordance and compliance with the Builders usual high standards and practices of construction for passenger cruise ships of a similar standard. |
3.4 | The Builder shall furnish spare parts and maintenance tools of the kind and in at least the quantities required by the Specification and the Classification Society. The cost of such spares and tools are included in the Contract Price. The Builder at its own cost and risk shall be responsible for the handling, storing and bringing on board the Ship of all spares and tools. Spares and tools furnished by the Builder shall be properly protected against physical decay, corrosion and mechanical damage and shall be properly listed so that replacements can be readily ordered by the Buyer. | |
4. | CLASSIFICATION | |
4.1 | The Builder shall design and build the Ship under the supervision and special survey of Det Norske Veritas (the Classification Society ), in accordance with the regulations, requirements, resolutions and rules of the Classification Society as well as all additions and amendments thereto that are (i) in force as of the Signing Date and (ii) officially published as of the Signing Date for ratification, enactment or implementation at any time thereafter (before or after the Delivery Date) (the Class Rules ). For the avoidance of doubt, this provision does not (a) require the Builder to comply with proposed additions or amendments to the Class Rules that are still under discussion and that have not been officially published as at the Signing Date or (b) subject to the following proviso, require the Builder to comply with additions and amendments officially published as of the Signing Date if such compliance would prevent the Builder from delivering the Ship in accordance with the Class Rules in force on the Delivery Date provided that if the Builder becomes aware of any conflict between the Class Rules referred to at (i) and (ii) above the Builder shall promptly notify the Buyer and comply with the Buyers requests to obtain such dispensation or waiver as may reasonably be required by the Buyer so as to avoid or resolve the conflict. On delivery the Ship shall |
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achieve the class notation [**] [Confidential Treatment] free of all conditions, notations, qualifications, recommendations, reservations and restrictions subject to the tolerances, and the qualifications on the Buyers right to reject the Ship and to terminate the Contract on account of the Builders failure to achieve such class notation, expressly provided for in Article 6, Clauses 2.10 to 2.15. | ||
4.2 | Decisions of the Classification Society as to whether or not Work complies with the requirements and standards of the Class Rules shall be final and binding on the parties. However, to the extent that any of the requirements and standards binding on the Builder under this Contract, the Plans or the Specification are higher than the Class Rules, the first sentence of this Clause 4.2 shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) the Builders obligations to ensure that the Work complies with such higher requirements and standards. | |
4.3 | The Builder shall also design and build the Ship under the supervision and in accordance with the regulations, requirements, resolutions and rules of the Regulatory Authorities, all other specified regulations, requirements, resolutions and rules, and all additions and amendments thereto that, are (i) in force as of the Signing Date and (ii) officially published as of the Signing Date for ratification, enactment or implementation at any time thereafter (before or after the Delivery Date) (the Regulatory Rules ). For the avoidance of doubt this provision does not (a) require the Builder to comply with proposed additions or amendments to the Regulatory Rules that are still under discussion and that have not been officially published as at the Signing Date or (b) subject to the following proviso require the Builder to comply with additions and amendments officially published as of the Signing Date if such compliance would prevent the Builder from delivering the Ship in accordance with the Regulatory Rules in force on the Delivery Date provided that if the Builder becomes aware of any conflict between the Regulatory Rules referred to at (i) and (ii) above the Builder shall promptly notify the Buyer and comply with the Buyers requests to obtain such dispensation or waiver as may reasonably be required by the Buyer so as to avoid or revolve the conflict. On delivery the Ship shall comply with the Regulatory Rules free of all conditions, notations, qualifications, recommendations, reservations and restrictions provided that where the Specification expressly allows compliance with any Regulatory Rules or other requirements to be demonstrated by tests carried out after delivery of the Ship, the Builder shall be obliged to take all such steps as may be practicable before delivery of the Ship in order to obtain advance comments so that any issues raised by the relevant Regulatory Authorities can be addressed before delivery and so that compliance with the relevant Regulatory Rules can be demonstrated after delivery in the manner and in accordance with the timetable provided for in the Specification. | |
4.4 | Decisions of a Regulatory Authority as to whether or not Work complies with its Regulatory Rules shall be final and binding on the parties. However, to the extent that any of the requirements and standards binding on the Builder under this Contract, the Plans or the Specification are higher than the relevant Regulatory Rules, the first sentence of this Clause 4.4 shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) the Builders obligations to ensure that Work complies with such higher requirements and standards. |
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4.5 | All classification, certification, testing, survey and other fees and charges payable to the Classification Society and any Regulatory Authority in relation to the Work shall be for the account of the Builder. | |
4.6 | The Builder shall provide (or procure that the Classification Society or the Regulatory Authorities provide) the Buyer with copies of all correspondence, minutes of meetings and other documents passing between the Builder, the Classification Society or any Regulatory Authorities in relation to the Work. In addition, the Buyer may attend all meetings between the Builder, the Classification Society or any Regulatory Authorities, and the Builder shall keep the Buyer well informed (in advance) of all of such meetings. The Builder shall promptly inform the Supervisor of any unscheduled meetings between the Builder and the Classification Society or any Regulatory Authorities and, if the Supervisor does not attend any of such meetings, the Builder shall give the Supervisor a reasonably detailed account of the matters discussed and decisions taken at the meeting. | |
4.7 | The Builder and its Subcontractors shall comply with all laws, rules and regulations applicable to the Builders activities in respect of the Work, and accordingly the Builder shall obtain all licenses, permits, certificates and permissions required for the execution and completion of the Work, including those required by the Classification Society and the Regulatory Authorities. | |
4.8 | The Builder shall be responsible for obtaining the approval of all drawings, calculations and other necessary matters by the Classification Society and the Regulatory Authorities, and shall arrange for all applicable certificates and approvals to be issued. | |
5. | SUBCONTRACTING AND MAKERS LIST | |
5.1 | The main assembly, construction and erection of the Ship, including the installation of the Ships main Parts and all other major elements of the Work, shall be carried out by the Builder at the Shipyard. | |
5.2 | On prior written notice to the Buyer, the Builder may subcontract the fabrication of steel blocks to European Subcontractors who are certified by the Classification Society as meeting DNV MPQA standards (or equivalent, if another Classification Society is appointed with the Buyers agreement) and who are otherwise objectively regarded as reputable and suitably qualified and experienced contractors to the passenger cruise ship industry. | |
5.3 | Appendix 3 of the Specification contains an agreed list (the Makers List ) of potential Subcontractors for the performance of important elements of the Work and for the supply of major Parts. The Makers List may be modified by agreement of the parties in order to take advantage of technical developments and improvements. Either party may make proposals to the other in this respect and each party agrees to give reasonable consideration to any such proposals but neither party will be obliged to accept any proposal that adversely affects its obligations, liabilities or interests under the Contract. | |
5.4 | The Builder shall use the approved Subcontractors referred to in the Makers List for the execution of the Work, and the supply of the Parts, therein specified. The Builder shall not be entitled, without the express prior written approval of the Buyer (which may be |
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withheld on reasonable grounds by the Buyer), to change any Subcontractor referred to in the Makers List or to engage any new Subcontractor for the same element of the Work or the supply of the same Parts or any replacements for such Parts. Nor shall the Builder permit any of such approved Subcontractors to subcontract any of their Work or supply obligations in a manner that is inconsistent with the other provisions of this Clause 5. | ||
5.5 | Where more than one Subcontractor is named in the Makers List in relation to an element of the Work or a Part, the Builder must nominate its choice of Subcontractor by notice in writing to the Buyer as soon as possible and at the same time provide the Buyer with the relevant technical specifications for Work or the Part in question. | |
5.6 | The Buyer will have up to ten (10) Working Days from its receipt of each written nomination and the related specifications within which to accept or to reject the Builders nomination and instead select a different Subcontractor from the Makers List. | |
5.7 | Before purchasing any major Parts from, or subcontracting any major elements of the Work (apart from the Parts and Work elements referred to in Clause 5.2) to, Subcontractors who are not named in the Makers List, the Builder will notify the Buyer in writing of its proposal and provide the Buyer with the relevant technical specifications in order to allow the Buyer to submit its comments to the Builder. The Buyer will have ten (10) Working Days within which to object to such proposal on the grounds of the availability of spares and the quality of post-delivery services support in North America. | |
5.8 | If the Buyer wishes the Builder to select a Subcontractor other than the one nominated by the Builder then the difference, if any, between that Subcontractors price and the price of the Subcontractor nominated by the Builder shall be added to or (as the case may be) subtracted from the Contract Price in accordance with the provisions of Article 3, Clause 1. Any other differences between the supply and warranty conditions offered by the Subcontractor selected by the Buyer and the conditions offered by the Subcontractor nominated by the Builder shall be accepted and borne by the Buyer. | |
5.9 | The Builder and the Buyer will work together closely in good faith, and each will use all reasonable commercial efforts, to avoid, minimise and mitigate the effects of any cost differentials between competing Subcontractors. | |
5.10 | The Builders appointment, contracting, employment or use of any workmen, Subcontractors, agents and other representatives (including, without limitation, any such persons appointed or employed or contracted by the Builder with the Buyers approval) shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) any of the Builders obligations and/or liabilities under or in connection with this Contract nor diminish the Builders responsibility to the Buyer to manage, supervise and conduct such persons in a workmanlike manner and in accordance with the practices and standards referred to in Clause 1.1. | |
5.11 | Save as otherwise agreed between the parties, all contacts with Subcontractors shall be made through the Builder. However, the Buyer may at any time contact and contract with Subcontractors in relation to post-delivery maintenance and support arrangements only. |
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5.12 | The Builder covenants with the Buyer that: |
(i) | it shall ensure that there is not and will not be created by the Builder any legal relationship between the Buyer and any Subcontractors appointed or otherwise used by the Builder (save for such relationships as may be created by reason of the warranty and guarantee assignments to be made by the Builder under Clause 2.9 of Article 7 or by mandatory operation of law); | ||
(ii) | it shall take reasonable care in the selection, employment, appointment and supervision of all Subcontractors who supply Parts, and shall procure their employment or appointment on terms consistent with the Buyers rights, and the Builders obligations and liabilities, under this Contract including, without limitation, such matters as (a) the nature of guarantees and warranties, and liberty for the Builder to assign all or any part(s) of such guarantees and warranties to the Buyer, (b) good service of the Subcontractors, (c) reliability of the Subcontractors, (d) availability and quality of pre-delivery training, and (e) availability of spares and quality of post-delivery service support as these matters are contemplated by the Specification; | ||
(iii) | it shall prevent its Subcontractors from exercising any rights to arrest, attach, detain or encumber the Ship, the Parts, or any of the Buyers Supplies; | ||
(iv) | it shall promptly provide the Buyer with such information and access as it may require from time to time in order to verify the performance of the supplies, services and Work provided or carried out by the Builders Subcontractors; | ||
(v) | it shall promptly take all necessary steps to ensure the proper performance of any such Subcontractors; | ||
(vi) | without prejudice to the operation of Article 10, Clause 2, it shall be fully, directly and solely responsible (as between the Builder, the Buyer and the other protected parties) for the acts, omissions and defaults of the Builders Subcontractors (including, without limitation, any persons appointed, employed or contracted by the Builder with the approval of the Buyer) and for the acts, omissions and defaults of the respective officers, employees, workmen, agents and other representatives of the Builder and its Subcontractors; and | ||
(vii) | upon the Buyers reasonable request from time to time, it shall promptly provide the Buyer with information relating to any subcontract. |
5.13 | All labour costs (including overtime costs) of the Builder and of the workmen, Subcontractors, and others used by the Builder shall be for the account of the Builder. | |
6. | BUYERS SUPPLIES | |
6.1 | The Buyer, at its own risk and expense, shall supply and deliver the Buyers Supplies to the Shipyard on a DDP (Incoterms 2000) basis, free of any encumbrances, and in proper condition for installation or incorporation in, or stowage on board, the Ship in accordance with the agreed delivery schedule in Part G of the Specification as the same is updated and amended by agreement of the parties during the construction period. |
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6.2 | The Builder shall, at its own risk and expense, receive, check as to visual compliance with transport documents, inspect the packaging, insure (in accordance with Clause 2 of Article 4), clearly mark as the property of the Buyer, safely store and keep well protected and completely segregated from Parts and other materials owned by the Builder or other parties, and properly put on board and thereafter install or incorporate in or stow on the Ship, all of the Buyers Supplies from time to time delivered to the Shipyard, and (whenever so requested by the Supervisor) the Builder shall also assist the Buyer to clear any Buyers Supplies through French customs. If any packaging is discovered damaged, the Builder will promptly inform the Buyer and the parties representatives will jointly unpack and inspect the content of the package. In addition, the Buyers personnel may unpack any other consignment of Buyers Supplies in order to check its conformity with the related orders and transport documents. | |
6.3 | In order to facilitate the installation and incorporation of the Buyers Supplies by the Builder, the Buyer shall furnish the Builder with all plans, instruction books, test reports and certificates provided to the Buyer by its suppliers. Upon request by the Builder, the Buyers available personnel at the Shipyard will assist or cause the Buyers relevant suppliers to assist the Builder and its Subcontractors with the installation of the Buyers Supplies. If any Buyers Supplies (including relevant technical documentation and any Buyers Supplies to be replaced by the Buyer pursuant to this Clause 6) have not been delivered within five (5) Working Days after the Supervisors receipt of a notice from the Builder under Clause 6.4(ii), the Builder shall be entitled to proceed with the construction of the Ship without installing or incorporating such Buyers Supplies in or on the Ship and the lack of any such installation or incorporation shall not be treated as a defect in the Ship provided that if the relevant Buyers Supplies may be installed or incorporated in or on the Ship at a later date without any additional cost to the Builder or any delay in delivery of the Ship then the Builder will accommodate any request by the Supervisor to extend the date for delivery and installation or incorporation of the relevant Buyers Supplies. | |
6.4 | The Builder: |
(i) | shall be liable to the Buyer for any damage to or loss of any Buyers Supplies caused by Builders default and occurring or arising after delivery of such Buyers Supplies under Clause 6.1; and | ||
(ii) | shall notify the Supervisor as soon as practicable of any loss of, damage to, or deficiency in the supply or performance of, any of the Buyers Supplies or any late delivery thereof in accordance with Clause 6.3. |
6.5 | Where the Builder is liable to the Buyer for any damage to or loss of any Buyers Supplies, the Builder will promptly replace the relevant Supplies with identical items at its risk and expense, in which case any insurance proceeds paid in respect of such loss and damage will be paid to and retained by the Builder. In all other cases where the Builder gives notice to the Buyer under Clause 6.4(ii), the Buyer will as soon as may reasonably be practicable replace the relevant Buyers Supplies at its risk and expense. For the avoidance of doubt, the other provisions of this Clause 6 shall apply to such replacements. |
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6.6 | The Buyer acknowledges and agrees that the Builder shall not be responsible for the design, performance or quality of Buyers Supplies. | |
6.7 | The Contract Price includes an allowance of [**] [Confidential Treatment] which may be used by the Buyer for the payment of Buyers Supplies ordered by the Buyer. This allowance will be paid for the Buyer, through each payment of the Contract Price under Article 8 Clause 2.1, in the following five tranches: |
(i) | the Contract Price payment under Article 8, Clause 2.1 (i) will include the sum of [**] [Confidential Treatment] in respect of the first tranche of the allowance; | ||
(ii) | the Contract Price payment under Article 8, Clause 2.1 (ii) will include the sum of [**] [Confidential Treatment] in respect of the second tranche of the allowance; | ||
(iii) | the Contract Price payment under Article 8, Clause 2.1 (iii) will include the sum of [**] [Confidential Treatment] in respect of the third tranche of the allowance; | ||
(iv) | the Contract Price payment under Article 8, Clause 2.1 (iv) will include the sum of [**] [Confidential Treatment] in respect of the fourth tranche of the allowance; and | ||
(v) | subject to Clause 6.9, the Contract Price payment under Article 8, Clause 2.1 (i) will include the sum of [**] [Confidential Treatment] (forty million euros) in respect of the fifth tranche of the allowance. |
6.8 | As soon as each pre-delivery payment of the Contract Price has been made by the Buyer under Article 8 Clause 2.1, the Builder shall pay the relevant tranche of the allowance to the Buyer. | |
6.9 | Upon delivery and acceptance of the Ship in accordance with this Contract, the Builder shall pay the fifth tranche of the allowance to the Buyer in or towards payment for Buyers Supplies ordered for the Ship provided that if the aggregate total cost of Buyers Supplies ordered for the Ship shall be less than the amount of the allowance, the amount of the fifth tranche of the allowance payable by the Buyer and hence the amount of the Contract Price payable under Article 8 Clause 2.1(v) shall be reduced accordingly. | |
6.10 | Within fifteen (15) days after the Ship has been delivered by the Builder and accepted by the Buyer in accordance with the express provisions of this Contract, the Buyer will remove from the Shipyard any of the Buyers Supplies which have not been used in the construction of, or otherwise delivered with, the Ship. | |
7. | BUILDERS TALLY OF BUYERS SUPPLIES | |
7.1 | The Builder shall make and keep fully itemised and up-to-date records of all Buyers Supplies from time to time delivered to the Shipyard and/or other premises of the Builder (and/or its Subcontractors) and, without prejudice to the generality of the foregoing, the |
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Builder shall ensure that such records are made and kept in the form used by the Builder for its own stocks and show: |
(i) | the date of delivery to the Builder (or its Subcontractors) of each batch or consignment of Buyers Supplies; | ||
(ii) | where and how such Buyers Supplies are stored; | ||
(iii) | when such Buyers Supplies are incorporated or installed in, or stowed on, the Ship; and | ||
(iv) | the balance (in usual units) of any unused Buyers Supplies. |
7.2 | The Builder shall provide the Supervisor, on a monthly basis, with a complete set of the records described in Clause 7.1 and all amendments of, or supplements to, such records. |
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1. | SUPERVISOR | |
1.1 | The Buyer may retain a supervisor (the Supervisor ) and a supervision team of a reasonable size at the Shipyard to maintain close contact with the Builder and, on behalf of the Buyer, to supervise the Work. The Buyer shall be responsible for obtaining and maintaining any necessary French permissions and authorisations for the Supervisor and his team to carry out their duties, and the Builder will assist the Buyer in this regard. | |
1.2 | The Supervisor and his team shall carry out their inspections and supervision in an efficient manner and in such a way as to avoid any increase in the building costs or delays to the Work. | |
1.3 | All salaries and, subject to Clause 1.4, costs and expenses of the Supervisor and his team shall be for the Buyers account. | |
1.4 | The Builder shall provide, free of charge to the Buyer, the Supervisor and his team suitably equipped and maintained changing rooms and offices in close proximity to the Shipyard and all such other facilities within such offices as may be necessary to enable the Supervisor and the Supervisors team effectively to carry out their Work including, without limitation, direct call national and international telephone lines (in respect of which the Builder will pay for line rentals and local calls and the Buyer will pay the actual cost of all other calls plus a 5% administration fee), fax lines and machines, broadband computer connections, and laser printers. The Builder will also: allow the Supervisor and his team to use the refectory at the Shipyard; and assist the Supervisor to find lodgings for his team by introducing him to local rental agents. | |
1.5 | A written statement confirming the Supervisors appointment and the scope of his actual authority shall be given by the Buyer to the Builder within thirty (30) days after the Effective Date. Written notice of revocation of appointment of the Supervisor and/or any change in the scope of his actual authority shall be given by the Buyer to the Builder as soon as reasonably practicable after any such revocation and/or change has been decided upon by the Buyer. | |
1.6 | The Supervisor and his team shall be given notice of and shall observe the safety and security precautions and other rules and regulations in force from time to time at the Shipyard and at the premises of the Builders Subcontractors. | |
1.7 | The Builder may request the Buyer to replace a representative who is deemed unsuitable and unsatisfactory for the proper progress of the Ships construction. The Buyer shall investigate any such request (if necessary, by sending its representative(s) to the Shipyard). If the Buyer considers the Builders request to be justified, it will effect the replacement as soon as may be conveniently arranged. | |
1.8 | The Buyer may request the Builder to replace any representative in the Builders equivalent of the Supervisors team who is deemed unsuitable and unsatisfactory for the proper progress of the Ships construction. The Builder shall investigate any such request and, if the Builder considers the request to be justified, it will effect the replacement as soon as may be conveniently arranged. |
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1.9 | Each of the Builder and the Buyer agrees to work closely with the other and to act reasonably and in good faith with a view to agreeing, by no later than the first anniversary of the Effective Date, the terms necessary to regulate the timetable, conditions and procedures for the advance occupation of certain parts of the Ship by the Buyer for crew familiarisation, training and lodging purposes. | |
1.10 | The Builder shall allow key representatives of the Buyer for the Ship to attend the Shipyard upon reasonable prior written notice to the Builder, and to be present during tests and for familiarisation, training and lodging purposes | |
2. | PLANNED PROGRAMME AND PLAN APPROVAL | |
2.1 | Each of the Builder and the Buyer acknowledges and agrees that successful completion of the construction of the Ship in accordance with this Contract, the Plans and the Specification will require a high degree of co-operation and flexibility on the part of both parties. | |
2.2 | Notwithstanding the generality of Clause 2.1, the Work shall be carried out in strict accordance with the express provisions of this Contract, the Specification and the Plans, and on the Effective Date the Builder will provide the Supervisor with: a planned programme containing a critical path treatment of the major and significant elements of the Work, in their proper sequence, which must be completed to ensure delivery of the Ship (the Planned Programme ); and the schedule of inspections and tests referred to in Part G.11 of the Specification (the Tests Schedule ). | |
2.3 | Without prejudice to the Builders express obligations under the other provisions of this Contract, if the Builder considers it necessary to make any material alterations in the Planned Programme the Builder shall promptly provide the Supervisor with written details of and reasons for the proposed alterations. Without prejudice to the Builders express rights under the other provisions of this Contract, no alterations to the Planned Programme shall delay completion of the Work or delivery of the Ship in accordance with this Contract, nor shall any such alterations accelerate the performance or change the tenor of any of the Buyers obligations under this Contract. | |
2.4 | The Builder shall submit to the Buyer each month, commencing on the date falling three (3) months after the Effective Date, until delivery, the following documentation (the reasonable accuracy of which the Builder hereby warrants): |
(i) | a status report (in form acceptable to the Buyer) of the Work as compared with the Planned Programme, including the critical path; | ||
(ii) | a report (in form acceptable to the Buyer) setting out the actual progress of the Work during the previous month as compared with the Planned Programme; | ||
(iii) | a list of modifications (if any) agreed or determined during the previous month; | ||
(iv) | a report in proper form on the delivery of Parts and Buyers Supplies during the previous month. |
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2.5 | Without prejudice to the Builders other obligations under this Contract, if the construction of the Ship should, for any reason whatsoever, be materially delayed beyond the time-frame indicated in the Planned Programme, the Builder shall promptly notify the Buyer and thereafter keep the Buyer regularly informed about the steps being planned and taken by the Builder in order to try to overcome the delay. | |
2.6 | All plans, drawings and other documents required by the Specification to be developed and supplied by the Builder to the Buyer for approval shall be delivered by the Builder in their proposed final form in three (3) hard copies (and, if so requested, electronically) to the Supervisor for approval by and on behalf of the Buyer. The Builder agrees to submit all such plans, drawings and documents in such timely manner that the Buyer may have a reasonable opportunity to review and approve or comment on the same within the periods provided for in Clauses 2.7 and 2.9. | |
2.7 | Within six (6) Working Days after the Supervisors receipt of each set of plans, drawings and other documents submitted to the Supervisor for approval pursuant to the Specification one (1) copy of each such plan, drawing and other document shall be returned by the Buyer to the Builder either as approved or as rejected by the Buyer provided that all rejections shall specify with reasons all aspects of the rejected plans, drawings or documents which in the opinion of the Buyer do not, or which provide for Work which does not, comply with the requirements of this Contract, the Plans or the Specification. | |
2.8 | If a plan, drawing or other document is approved by the Buyer, the Builder shall proceed with the Work shown therein. | |
2.9 | If any aspect of a plan, drawing or other document is rejected by the Buyer under Clause 2.7, and the Builder accepts such rejection, the Builder shall promptly alter the relevant plan, drawing or document without charge to the Buyer and resubmit it as altered for approval by the Buyer in accordance with the procedure and timetable referred to in Clause 2.7. For the avoidance of doubt, if any plans, drawings or other documents rejected by the Supervisor contain any error, omission, ambiguity, inconsistency, inadequacy or other deficiency they and the related Work shall be remedied by the Builder (if the Builder accepts such rejection) without any increase in the Contract Price or any extension of the Delivery Date. | |
2.10 | All Work performed by the Builder prior to approval by the Buyer of all plans, drawings or documents relating to such Work shall be at the sole risk and expense of the Builder without prejudice to the Builders right to dispute any rejection by the Buyer under Article 13. | |
2.11 | If the Buyer (or the Supervisor on the Buyers behalf) fails to return to the Builder or (in the case of any rejections) fails to give reasons, in accordance with the time limits referred to in Clause 2.7 and Clause 2.9, any plan or drawing or other document and this failure is not remedied within two (2) Working Days after the Supervisors receipt of a written notice from the Builder specifying such failure, such plan or drawing or other document shall be deemed to have been automatically and expressly approved by the Buyer without any comments. |
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2.12 | Although the Buyers approval (or deemed approval) of plans, drawings and other documents shall preclude the Buyer from subsequently requiring any changes therein (except pursuant to Article 3), such approval or deemed approval shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) any of the Builders obligations and/or liabilities under or in connection with the Contract. | |
2.13 | If the Builder discovers any aspect of the Plans, the Specification or the Work that does not conform with the Class Rules or the Regulatory Rules or the shipbuilding and marine engineering practices referred to in Article 1, Clause 1.1 the Builder shall promptly notify the Supervisor and submit a proposal to the Supervisor for the Buyers approval (such approval not to be unreasonably withheld or delayed) for the removal of the non-conformity without any cost to the Buyer, without any increase in the Contract Price and without any extension of the Delivery Date. | |
3. | WORK APPROVAL | |
3.1 | Throughout the period during which the Ship is being built the Builder will conduct its usual quality control programme of inspections, testing and supervision by a team of the Builders staff specially designated for this purpose but the Work and all Parts, as the same may at any time and at any place be completed or be in progress, shall also be subject to inspection by and the approval of the Buyer (acting through the Supervisor and his team) and the Classification Society. | |
3.2 | Subject only to the proviso at the end of this Clause 3.2, the Builder shall at all times during normal working hours and subject to the usual regulations of the Shipyard give the Supervisor and the Supervisors team free and ready access to (and a free right to inspect) the Ship and Parts at any place where Work is being done or tests are being carried out or Parts are being processed or stored in connection with the building of the Ship including the Shipyard and other yards, workshops and stores of the Builder, and the premises of the Builders Subcontractors who are doing Work in connection with the building of the Ship or assembling, manufacturing, processing or storing of Parts, and the Builder shall ensure that provisions equivalent to the provisions of this Clause 3.2 are inserted into all subcontracts from time to time made by it in connection with the Work provided that the Supervisor or any member of his team must be accompanied by a representative of the Builder during all visits to the design offices of the Builder and any Subcontractors. | |
3.3 | The Buyer shall be entitled but not obliged to reject any Work or Parts that do not comply with the requirements of this Contract, the Plans and the Specification unless and to the extent that such non-compliance is the direct result of the Builder seeking to avoid (in a manner approved by the Buyer, such approval not to be unreasonably withheld) any non-conformities referred to in Clause 2.13 provided that all rejections shall be made in writing, and shall specify with reasons those aspects of the Work or Parts inspected which in the opinion of the Buyer do not comply with the requirements of this Contract, the Plans or the Specification. | |
3.4 | If any Work or Parts shall be rejected by the Buyer as not complying with the Contract, the Plans or the Specification, the Builder shall promptly remedy or replace such Work or Parts without any increase in the Contract Price or any extension of the Delivery Date |
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unless the Builder does not accept the validity of the Buyers rejection in which case the provisions of Clause 4 below shall apply. | ||
3.5 | The Builder shall not cover up any Part or element of the Work that the Supervisor or his team are entitled to inspect so as to render impossible any proper inspection thereof by the Supervisor without giving the Supervisor sufficient advance written notice and a reasonable opportunity to inspect the relevant Part or Work. If any such covering up occurs the Buyer may require the Builder to uncover the relevant Part or Work so that the Supervisor may make its inspection. For the avoidance of doubt, if the Supervisor receives sufficient advance written notice and reasonable opportunity to inspect the relevant Part or Work but fails to do so, the Buyer will be deemed to have waived its right to require the Builder to uncover such Part or Work. | |
3.6 | If the conduct of subsequent Work invalidates the results of earlier inspections, tests or trials on previously completed Work, the Supervisor may require the Builder to carry out further inspections, tests and trials on such Work. | |
3.7 | The inspection, supervision and testing from time to time carried out by the Supervisor and his team shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) any of the Builders obligations and/or liabilities under or in connection with the Contract. | |
4. | TECHNICAL DISPUTES | |
4.1 | If, at any time before delivery of the Ship, there is a difference of opinion between the Builder and the Buyer in relation to any technical matter regarding the Specification and/or the Plans (including any dispute concerning compliance with any of the quality requirements and other technical standards provided for in this Contract), then either party may give a notice to the other party and if the parties do not resolve the difference of opinion within five (5) Working Days after the date of service of such a notice, the Builder or the Buyer may require that the difference of opinion be treated as a Dispute of a technical nature to be resolved in accordance with Clause 1 of Article 13. |
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1. | MODIFICATIONS | |
1.1 | This Contract, the Plans and the Specification may be modified from time to time by agreement of the parties provided that all reasonable and timely modifications requested by the Buyer, and/or any modifications required to be made under Clause 2 which are occasioned by any changes in the Class Rules or in any of the Regulatory Rules after the Signing Date, shall be implemented by the Builder if the Buyer agrees to necessary modifications to the Contract Price, the Delivery Date and any other relevant provisions of this Contract, the Builder agreeing to act in good faith and use all reasonable efforts to accommodate any such reasonable requests by the Buyer so that all such modifications shall be made: |
(i) | at the lowest cost reasonably possible agreed or determined in accordance with Clause 1.2; | ||
(ii) | within the shortest period of time reasonably possible; and | ||
(iii) | without any loss in the relative priority of the Work for the Ship compared to other construction Work in the Shipyard, |
provided that nothing in this Clause 1.1 shall require the Builder to jeopardise its contracted building schedule(s) for other ships. | ||
1.2 | Any adjustment of the Contract Price to be made pursuant to this Clause shall be in a fixed amount, not subject to any escalation and shall reasonably reflect the Builders increased costs (or savings in costs) directly, necessarily and reasonably occasioned by the proposed modification. If the parties cannot agree on the amount of such increased costs (or savings in costs), the same shall be deemed to be the sum of: |
(i) | the net positive or negative change in the Builders newbuilding labour costs (excluding profit) as a direct and necessary result of the modification, (including the direct cost of any necessary design and engineering services not otherwise charged to the Buyer) as of the date when the requirement to effect the modification is proposed; | ||
(ii) | the net positive or negative change in the Builders cost of materials (excluding profit) as a direct and necessary result of the modification; and | ||
(iii) | the Builders agreed profit, which shall be a positive number equal to [**] [Confidential Treatment] per cent. ([**] [Confidential Treatment]) of the sum of the amounts determined in accordance with paragraphs (i) and (ii), in the case of increased costs only. |
The Builder has provided the Buyer with a table of the Builders unit rates for newbuild labour costs and main materials, and these rates shall be used when calculating all adjustments to the Contract Price under this Clause 1.2. | ||
1.3 | Any agreement on a modification ( AOM ) of this Contract, the Plans or the Specification shall be agreed by the parties before execution of such alterations and changes, and shall include: |
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(i) | any increase or decrease in the Contract Price agreed or determined in accordance with Clause 1.2; | ||
(ii) | any change in the Delivery Date, and | ||
(iii) | any other adjustment to or amendment of any relevant provisions of this Contract, the Plans or the Specification, |
that is necessarily and reasonably occasioned by such modification. | ||
Whenever so requested by the Buyer, the Builder will verify its calculations by providing to the Buyer, on an open book basis, a reasonably detailed explanation of the Builders calculations and details of the man-hours and other data used in connection with any of the alterations or changes occasioned by any modification to be made under this Article 3. For all purposes of this Contract, open book basis means the provision by or on behalf of the Builder of all such invoices and other supporting information, and of all such calculations, determinations and other data as may be required in order to afford complete transparency to the Buyer but it does not entitle the Buyer to make an audit of the Builders accounts. | ||
1.4 | Any agreement on a modification of this Contract, the Plans or the Specification shall be recorded and evidenced by an AOM in the form set out in Schedule 1 of this Contract and signed by the parties duly authorised representatives, and following the signature of each AOM the Builder shall modify the building of the Ship in accordance therewith. | |
1.5 | If the parties fail to reach agreement on all matters relating to a modification requested by the Buyer within six (6) Working Days from the date on which the Builder has submitted its cost modification proposal to the Buyer or if there is any Dispute between the parties as to the cost of the requested modification then, if the Buyer so requires, the Builder will make the requested modification before the Dispute has been resolved provided the Buyer: |
(i) | makes an AOM pursuant to Clause 1.4 in respect of the agreed non-cost related alterations and changes to this Contract, the Plans and the Specification occasioned by the modification; and | ||
(ii) | undertakes to pay the amount found due to the Builder under Article 13 Clause 1.1. |
2. | CLASSIFICATION AND REGULATORY CHANGES | |
2.1 | If, after the Signing Date, any Class Rules and/or any Regulatory Rules are changed by the Classification Society or any Regulatory Authority, each party shall promptly notify the other in writing of the relevant change(s) and as soon as reasonably practicable thereafter the Builder shall propose the necessary modifications to be made to this Contract, the Plans and the Specification. | |
2.2 | If, following its receipt of a notice under Clause 2.1, the Buyer reasonably considers that the operation of the Ship would permit of a dispensation or waiver, the Builder will at the |
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request of the Buyer apply for a dispensation from, or waiver of compliance with, the relevant change(s). | ||
2.3 | If the Buyer does not require the Builder to apply for a dispensation or waiver or it has not been possible to obtain a dispensation or waiver within a period of fifteen (15) days after the Buyers receipt of a notice under Clause 2.1 (or such longer period of time as the parties may reasonably agree in the light of all the circumstances then prevailing), the parties shall make an agreement to modify this Contract in accordance with and subject to the conditions of Clause 1 and thereafter the Builder shall make the relevant change(s) in the design or building of the Ship. | |
3. | SUBSTITUTION OF PARTS | |
3.1 | The Builder is aware of the commonality of supply and other service related principles by reference to which the Buyer has approved the selection of all main Parts and the related Subcontractors. If (notwithstanding all reasonable efforts on the part of the Builder and provided that orders for the same were placed in good time by the Builder) any Parts are not available at the time required for their installation or incorporation in the Ship, the Builder may (and, if such situation is not directly caused by one or more of the contingencies specified in Clause 1.3 of Article 5, with the prior written approval of the Buyer which is not to be unreasonably withheld) use suitable substitute Parts that are at least the equivalent in standard and quality as the Parts that were not available and that are capable of meeting all of the requirements of: |
(i) | this Contract, the Plans and the Specification; and | ||
(ii) | the Classification Society and the Regulatory Authorities. |
3.2 | Where a proposed substitution of Parts is approved by the Buyer and (as necessary, by the Classification Society and any relevant Regulatory Authority), the Builder shall bear all additional costs and expenses whatsoever in relation to such substitution. |
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1. | TITLE, RISK AND ENCUMBRANCES | |
1.1 | Title to the Ship and all Parts (but not Buyers Supplies, title to which will at all times be and remain with the Buyer) shall pass to the Buyer upon the Ships delivery to, and acceptance by, the Buyer in accordance with Clause 1 in Article 7 and until such delivery and acceptance shall have occurred all risks connected with the Work including, without limitation, all risks in relation to the Ship, all Parts and all Buyers Supplies from the time when they are taken into the custody of the Builder or any of its Subcontractors shall lie exclusively with the Builder. | |
1.2 | Immediately upon: |
(i) | the receipt by the Builder (or any of its Subcontractors) of any Buyers Supplies; and | ||
(ii) | the delivery to, or the assembly fabrication or manufacture by, the Builder (or any of its Subcontractors) of all steel blocks and other main Parts, |
the Builder shall mark (or cause its relevant Subcontractors to mark) the same and the Ship (as it is from time to time built) with hull number C33. | ||
1.3 | The Builder shall have no authority to create (and waives all rights to create) any encumbrances whatsoever over any of the Buyers Supplies, nor shall it permit any encumbrances of any kind (other than permitted encumbrances) to be imposed on or asserted against any of the Buyers Supplies. | |
1.4 | At any time when a payment is due to the Builder under this Contract, and at all other reasonable times, the Buyer may require the Builder to provide a written statement satisfactory to the Buyer showing what, if any, encumbrances of any kind (other than permitted encumbrances) have been imposed on or asserted against any of the Buyers Supplies. | |
1.5 | If any encumbrance of any kind (other than any permitted encumbrance) is imposed on or asserted against any of the Buyers Supplies as a result of the acts or omissions of the Builder or those for whom the Builder is responsible under this Contract, the Builder shall promptly notify the Buyer and shall, not later than ten (10) days thereafter, secure the discharge or release of such encumbrance provided that if the Builder desires to contest any such encumbrance and such discharge or release is not available under law during such contest (including, without limitation, through the filing of a bond or other security), the Builder shall immediately take such steps to prevent such encumbrance from delaying or otherwise adversely affecting the Work and shall indemnify fully, hold harmless and defend the Buyer and all other protected parties from and against all losses which any of them may sustain or incur as a result of the imposition of any such encumbrance. | |
1.6 | Notwithstanding the provisions of Clause 1.5, the Buyer may secure the removal of any such encumbrance in which event the Builder shall reimburse the Buyer in full for its costs (including legal fees) of securing such removal. |
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1.7 | Prior to the installation of any of the Buyers Supplies that have been purchased, paid for or provided by the Buyer, the Buyer shall confirm in writing to the Builder whether any permitted encumbrances have been imposed on or asserted against such Buyers Supplies and shall discharge any such permitted encumbrances prior to the installation of such Buyers Supplies, and if the Buyer fails to discharge any such permitted encumbrances, the Builder may withhold the installation of the relevant Buyers Supplies in which case any resulting delays will be the Buyers responsibility. | |
1.8 | The Builder may grant one or more mortgages over the Ship and Parts (a Mortgage ), but not over the Buyers Supplies, to one or more mortgagees as security for the Builders construction financing of the Ship and for the financing of the Refund Guarantees provided that : |
(i) | the aggregate total amount to be secured by any such Mortgages shall not exceed the Contract Price (as the same may be increased in accordance with the express provisions of this Contract); and | ||
(ii) | the Builders obligations under the construction financing arrangements referred to above, and the related Mortgages and other encumbrances, shall be without recourse to the Buyer and other protected parties. |
1.9 | All encumbrances (including, without limitation, all Mortgages) over the Ship and Parts, and all associated entries in any registers, shall be cancelled and discharged at the latest simultaneously with the Ships delivery to the Buyer. | |
2. | INSURANCES |
2.1 | From the date when steelwork for the first hull section of the Ship is completed and until delivery to the Buyer the Ship, all Parts, and all Buyers Supplies (for their insured value as declared by the Buyer) taken into the custody of the Builder (or any of its Subcontractors) and whether or not built into or installed on or in the Ship, shall be at the exclusive risk of the Builder which shall at its own expense keep the same insured with first class European and / or Lloyds of London insurers acceptable to the Buyer against all usual builders risks, including protection and indemnity risks, tests risks, and war risks under policy terms that shall be no less favourable than those of the London Institute Builders Risks clauses (with appropriate amendment if any sea trial tests are to be conducted more than 250 nautical miles from the Shipyard). All premiums shall be for the sole account of the Builder. Deductibles shall be applied to the Builder or the Buyer in respect of their respective interests in the insurances to be arranged by the Builder under this Article (the Insurances ). Neither the brokers nor the insurers shall have any rights of recourse against the Ship after her delivery to the Buyer, or against the Buyer or any other of the protected parties at any time whatsoever, or any rights to make any deduction, set-off or other withholding whatsoever from or against any sum payable to the Buyer or its assignees in connection with the Insurances. If, by the time when steel work for the first hull section of the Ship has been completed, the Builders insurance arrangement have been consolidated with the insurance arrangements of the AKER YARDS Group, then the Builder may propose an alternative policy based on the AKER YARDS Group standard terms for approval by the Buyer; such approval not to be unreasonably withheld or delayed. |
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2.2 | The amount of the Insurances shall be not less than (i) the actual value of the Ship as built from time to time, and (ii) the insured value, as declared by the Buyer, of all Buyers Supplies from time to time taken into the custody of the Builder or any of its Subcontractors, and whether or not such Supplies are built into or installed on or in the Ship. |
2.3 | All Insurances shall name the Builder as the assured party and the Buyer as the co-insured party for their respective interests. The Insurances shall contain loss payable provisions reasonably acceptable to the Buyer. |
2.4 | All Insurances shall provide that there shall be no recourse against the Ship after her delivery to the Buyer, or against the Buyer or the Buyers assignees for the payment of any premiums or commissions and that no cancellation of the Insurances, for any reason whatsoever, shall become effective unless and until fourteen (14) days prior written notice has been given by the relevant brokers or insurers to the Buyer. |
2.5 | Within five (5) days after steelwork for the first hull section of the Ship has been completed the Builder shall supply the Buyer with an original cover note and all related documents specifying the terms of the Insurances and security. | |
2.6 | If at any time there is: |
(i) | any lapse in the insurance coverage which the Builder is required to arrange under this Clause 2 and such lapse is not corrected within seven (7) days, the Buyer may effect replacement coverage at the Builders expense; or | ||
(ii) | any failure by the Builder to pay any premiums due in respect of the Insurances and such failure is not corrected within seven (7) days, the Buyer may pay the same and recover the relevant payment(s) from the Builder. |
3. | LOSS OR DAMAGE | |
3.1 | In the event of any partial loss of the Ship before delivery: |
(i) | the loss shall be made good by the Builder as soon as reasonably possible, the Delivery Date shall be extended in accordance with Clause 1 in Article 5 ( provided that the cause of the partial loss is excused under that Clause) and the partial loss proceeds referable to the Ship and/or Parts (other than Buyers Supplies) subject to the partial loss shall be applied by the Builder in making good the partial loss in accordance with this Contract, the Plans and the Specification; and | ||
(ii) | the partial loss proceeds referable to any Buyers Supplies subject to the partial loss shall be paid to the Buyer. |
3.2 | In the event of the total loss of the Ship before delivery, either the Builder or the Buyer shall be entitled to terminate this Contract by written notice to the other, such notice to be delivered within thirty (30) days after the date (the Determination Date ) on which it is determined that the Ship has become a total loss pursuant to Clause 3.5 below. |
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3.3 | If, following the total loss of the Ship, neither party terminates this Contract pursuant to Clause 3.2, the Builder shall receive all total loss proceeds apart from those referable to any Buyers Supplies subject to the total loss, which shall be paid to the Buyer and thereafter the Builder shall proceed with the building of the Ship in accordance with this Contract and the Delivery Date shall be extended by agreement of the parties. | |
3.4 | If there is a total loss of the Ship before delivery, then:- |
(i) | if either party elects to terminate this Contract pursuant to Clause 3.2, the Builder shall within ninety (90) days from (and including) the Determination Date pay to the Buyer an amount equal to the sum of: |
(a) | all payments on account of the Contract Price previously made by the Buyer to the Builder under this Contract together with interest thereon at the Relevant Rate calculated from the date on which the Builder received each such payment to the date on which the reimbursement is received by the Buyer, and | ||
(b) | the Buyers Supply Costs in respect of any Buyers Supplies which are subject to the total loss or which cannot be removed in sound condition from the Ship, the Shipyard or other place(s) where they are stored and returned to the Buyer, free from all encumbrances whatsoever, and in addition the Builder will return to the Buyer all Buyers Supplies which have not been lost or damaged and which can be removed in sound condition from the Ship, the Shipyard and other place(s) where they are stored, whereupon this Contract shall be deemed to have been rescinded subject and without prejudice to the rights, duties, liabilities and obligations of either party under any other of the express provisions of this Contract (including, without limitation, Articles 9 to 14) and the Builder alone shall be entitled to receive and retain any and all amounts recoverable under the Insurances; or |
(ii) | if neither party terminates this Contract pursuant to Clause 3.2, then Clause 3.1 of this Article 4 shall apply. |
3.5 | A total loss shall be deemed to have occurred: |
(i) | if it consists of an actual loss, on the actual date of loss; or | ||
(ii) | if it consists of a constructive or compromised or arranged or agreed total loss, on the date on which notice of abandonment of the Ship is given to her insurers. |
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1. | EXTENSION OF TIME FOR WORK |
1.1 | If the Builder gives notice as provided in Clauses 2.1, 2.2 and 2.3 the Builder shall be entitled to an extension of the Delivery Date but only if the Builder can demonstrate clearly that: |
(i) | there is a specific contingency which is delaying or will delay Work in the updated critical path of delivery of the Ship for more than one Working Day; | ||
(ii) | such delay is being caused or will be caused by one or more of the contingencies specified in Clause 1.3; | ||
(iii) | it has used and is continuing to use all reasonable efforts to avoid, prevent, minimise and overcome the actual delay in delivery of the Ship provided that such reasonable efforts do not jeopardise the Builders contracted obligations for the construction of other ships; and | ||
(iv) | the contingency in question occurred before the Delivery Date. |
provided that (a) the length of any such extension shall be the number of days by which the Builder can demonstrate clearly that completion of the Work and delivery of the Ship actually will be delayed by such contingency(ies) and (b) delays attributable to two (2) or more concurrent contingencies shall not be aggregated or counted more than once. | ||
1.2 | The Builder shall at all times have the burden of demonstrating clearly each of the matters required to be established by this Clause 1 and in the event that it is not possible for it to demonstrate clearly whether, or to what extent, any delay in delivery is caused by any contingency which is excused by the express provisions of this Clause 1, the Builder shall not be entitled to any extension of the Delivery Date. |
1.3 | The Builder shall be entitled to an extension of the Delivery Date, as provided in Clause 1.1, for delay caused by one or more of the following contingencies: |
(i) | by legislation or other action by or on behalf of any government (or any agency or other authority of such government) prohibiting or otherwise preventing the Builder from proceeding with the Work; | ||
(ii) | by war or warlike events (including such acts of terror, sabotage or other hostile acts or preparations therefore as are beyond the Builders control) involving any country which is relevant to the building of the Ship; | ||
(iii) | by extraordinary weather conditions not included in normal planning; | ||
(iv) | by such strikes, lockouts and other labour disturbances of or directly affecting the Builder or those of its Subcontractors who supply important Parts (such as engines, major castings, or other major turn-key Parts) as are beyond the Builders control provided that the Builder shall not be entitled to any extension of the Delivery Date for delays resulting from strikes, lock outs or other labour |
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disturbances of its personnel occurring after the date falling 90 (ninety) days before the Delivery Date; | |||
(v) | by such accidents, explosions, fires, disruptions of power supplies and other similar occurrences as are beyond the Builders control; | ||
(vi) | by the non-compliant or late delivery to the Builder of any Parts, or the non-compliant or late performance of the Builders Subcontractors provided that the late delivery or performance resulted from causes which would entitle the Builder (if applying to it) to an extension of the Delivery Date under this Clause 1 and provided that the Builder proves that it has exercised due diligence (a) in contracting for such Parts and with such Subcontractors, (b) in the performance of any acts required of it with respect to such Parts or Subcontractors, (c) in monitoring the acts and circumstances of such Subcontractors, and (d) in expediting deliveries or performance under the Builders purchase or subcontracts or procuring equivalent substitute performance in the event of the late delivery of such Parts or the under-performance in such purchase or subcontracts; or | ||
(vii) | to the extent not covered by any of paragraphs (i) to (vi) of this Clause 1.3, by such Acts of God as could not reasonably be foreseen or provided against by the Builder. |
1.4 | Notwithstanding anything to the contrary in this Clause 1, the Builder shall not be entitled to any extension of the Delivery Date for: |
(i) | any delay resulting from a contingency or other cause of delay which has itself been caused by the acts, omissions, neglect or other default of the Builder; | ||
(ii) | any delay resulting from a contingency or other cause of delay in existence as of the Effective Date; or | ||
(iii) | any delay resulting from a contingency or other cause of delay, which was or reasonably should have been foreseen or anticipated by the Builder by reason of facts which were, or after reasonable enquiry should have become, known to the Builder as of the Effective Date; or | ||
(iv) | any delay resulting from contingencies or other causes of delay which reasonably could have been avoided by the Builder; | ||
(v) | any delay resulting from the non-compliant or late performance or other default of a Subcontractor, if such delay results from a contingency or other cause of delay (a) which is in effect, published and announced as of the date of the award of the relevant purchase contract or subcontract, or (b) which would not entitle the Builder (if applying to it) to an extension of the Delivery Date under this Clause 1; or | ||
(vi) | any delay due to increased labour or material costs or other financial stress of the Builder or any Subcontractors; |
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(vii) | any delay resulting from a contingency or other cause of delay occurring after the Delivery Date. |
In this Clause 1.4 references to the Builder shall include the Builder and all officers, employees, workmen and other representatives of the Builder. | ||
1.5 | The Builder may claim an extension of the Delivery Date for and equivalent to any actual delay to Work in the updated critical path of delivery of the Ship if such delay is caused by any failure on the part of the Buyer to perform its obligations under this Contract (unless any such failure is caused or excused by any failure on the part of the Builder to perform any of its obligations under this Contract) provided that the Builder gives written notice of such claim to the Buyer within five (5) days after the date on which the Builder first had knowledge of the cause of the delay. If the parties do not agree upon the length of the extension claimed by the Builder, the Builders entitlement to claim extension of the Delivery Date shall be determined as a Dispute pursuant to Article 13 |
2. | DELAY NOTICES |
2.1 | The Builder shall give written notice to the Buyer of a contingency pursuant to Clause 1.3 as soon as practicable and no later than five (5) days after the date on which the Builder first has knowledge of such contingency and in such notice the Builder shall describe the cause of the delay, the date of commencement (or first occurrence) of the cause, its expected duration and its expected effect on Work in the updated critical path of delivery of the Ship. |
2.2 | The Builder will provide the Buyer with regular written status reports (at such reasonable intervals as the Buyer may request) with respect to any delay in respect of which the Builder has given notice pursuant to Clause 2.1 and as to the steps being taken (and planned) by the Builder to minimise and overcome any actual delay in delivery of the Ship. |
2.3 | Within five (5) days after any cause of delay set forth in Clause 1.3 has ceased to exist, the Builder shall notify the Buyer of such cessation and give the Buyer a written statement of the actual or estimated delay in the completion of the Work resulting from such cause together with such detailed information and documentation as is then available to it justifying such extension, and any such detailed information and documentation thereafter becoming available to the Builder shall be promptly be given to the Buyer. |
2.4 | On the basis of the notices, reports, statements and information given to the Buyer by the Builder relating to any actual or estimated delay in delivery (and such further information and documentation as the Buyer may reasonably request), the Buyer and the Builder shall confer and attempt to agree upon the number of days by which the Delivery Date shall be extended provided that if the Buyer and the Builder cannot so agree within thirty (30) days after the completion of any such conference, the extension of the Delivery Date (if any) shall be determined as a Dispute pursuant to Article 13. |
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2.5 | The extension of the Delivery Date provided for in this Article shall be the only remedy for delay to which the Builder shall be entitled (subject and without prejudice to the express provisions of Article 6, Clauses 1.4 and 1.5) and, by way of illustration but not limitation, the Builder shall not be entitled to damages or any increase in the Contract Price or other compensation for delay. |
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1. | TESTS |
1.1 | At its sole and direct risk and expense, the Builder shall subject the Ship and specified Parts to the tests in order to ascertain whether the Ship and such Parts have been completed in full accordance with this Contract, the Plans and Specification. In connection with the sea trials tests, the Builder shall provide at its own expense the required quantities of ballast water (if any), fresh water, fuel oil, lubricating oil, greases and other consumables as well as the crew required to ensure safe navigation. By the time of commencement of the tests, the Ship shall have been substantially completed so as to enable the tests to be performed as specified. |
1.2 | The Buyer shall be entitled to have the Supervisor and his team present at all tests and the Builder shall give the Supervisor: |
(i) | two (2) Working Days prior written notice of all tests (except sea trials tests) (a) designated for such notice by the Supervisor following delivery by the Builder of the Schedule of Tests and (b) scheduled to take place on week-ends or other non-Working Days; and | ||
(ii) | one (1) Working Days prior written notice of all other tests (except sea trials tests). |
1.3 | The Builder shall give the Supervisor fifteen (15) Working Days estimated, and seven (7) Woking Days definite, prior written notice of the time and the place for the sea trials tests provided that only one (1) days prior written notice need be given to the Supervisor with respect to retrials at sea conducted within three (3) days after completion of a previous sea trial test at or upon which the need for such retrial was determined. |
1.4 | The course to be followed during the sea trials tests shall be determined by the Builder but shall be [**] [Confidential Treatment]. If the weather conditions on the date specified for the sea trials tests are (in the reasonable opinion of the Builder) so unfavourable that they would prevent the Builder from carrying out such tests in a proper manner then the same shall take place on the first available day thereafter that weather conditions permit. If, during the sea trials tests unexpected changes in the weather occur which, in the reasonable opinion of the Builder, are such as to prevent the continuation of such tests in a proper manner then such tests shall be discontinued and postponed until the next following favourable day unless the Buyer shall (in its option) agree in writing to accept the Ship on the basis of the tests made. If commencement of the sea trials tests is postponed or such tests are discontinued pursuant to the provisions of this Clause 1.4 and the aggregate total delay to such tests exceeds twenty four (24) hours, then the Delivery Date shall thereafter be postponed by the period of delay in excess of twenty four (24) hours. |
1.5 | The failure of the Supervisor to be present at any test, after due notice, shall be deemed to be a waiver of the Supervisors right to be present at the relevant test and the Buyer shall be obliged to accept the results of such test on the basis of a certificate of the Builder and the Classification Society that the Ship and specified Parts, after due |
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completion of the tests, were found to have been completed in full accordance with this Contract, the Plans and the Specification provided that if the Supervisors failure to attend any test, after due notice, is due to an event or combination of events outside the Supervisors control which arose not later than forty-eight (48) hours before commencement of the relevant test and the Buyer or the Supervisor so notifies the Builder before commencement of the test in question, then the test shall be postponed until the Supervisor (or substitute) is able to attend or the expiration of forty-eight (48) hours from the time at which the originally scheduled test was due to commence, whichever first occurs and the Delivery Date shall be postponed by the period for which commencement of the test is delayed. |
1.6 | All tests to which the Supervisor has, by endorsement of the Schedule of Tests, indicated his wish to attend but which are conducted without due notice to the Supervisor shall be reconducted by the Builder on due notice to the Supervisor at the sole risk and expense of the Builder. |
1.7 | Within three (3) Working Days after completion of the tests, the Builder shall notify the Buyer in writing of the results of the tests and shall, when appropriate, confirm to the Buyer that the Ship complies with the requirements of this Contract, the Plans and the Specification. |
1.8 | Within three (3) Working Days after its receipt of the Builders notice under Clause 1.7, the Buyer shall notify the Builder in writing of its technical acceptance of the Ship or its technical rejection of the Ship. If the Buyer notifies the Builder of its technical rejection of the Ship, the Buyers notice shall specify the respects in which, in the Buyers opinion, the Ship fails to comply with this Contract, the Plans and Specification. The Builder acknowledges and agrees that the Buyer may reject the Ship not only for defects discovered during or as a result of tests but also defects discovered and previously notified to the Builder that have not yet been remedied. |
1.9 | If and to the extent that the Builder accepts the Buyers technical rejection of the Ship, the Builder shall at its sole risk and expense forthwith take all such steps as may be necessary to remedy the defects and all such tests as may be necessary to demonstrate to the Buyer, the Classification Society and the Regulatory Authorities the full and final remedy of such defects. When appropriate, the Builder shall notify the Buyer in writing that the necessary remedial steps and tests have been completed and that the Ship complies with the requirements of this Contract, the Plans and the Specification |
1.10 | Within three (3) Working Days after its receipt of the Builders notice under Clause 1.9, the Buyer shall notify the Builder in writing of its technical acceptance of the Ship or its technical rejection of the Ship. If the Buyer notifies the Builder of its technical rejection of the Ship, the Buyers notice shall specify the respects in which, in the Buyers opinion, the Ship still fails to comply with this Contract, the Plans and Specification in which case the provisions of Clause 1.9 and 1.10 shall again apply. |
1.11 | If the Buyer fails to notify the Builder of its technical acceptance or technical rejection of the Ship together with its reasons for any rejection, within the time periods specified in Clauses 1.8 and 1.10 above, the Buyer shall be deemed to have technically accepted the Ship. |
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1.12 | The above process shall be repeated as often as necessary until the earlier of the time at which the Buyer notifies the Builder in writing of its technical acceptance of the Ship, and the valid and lawful termination of this Contract by either party. If there is any difference of opinion between the Builder and the Buyer as to whether the Ship complies with the requirements of this Contract, the Plans or the Specification either party may require that the difference of opinion be treated as a Dispute to be resolved in accordance with the provisions of Article 13. |
1.13 | The Buyers technical acceptance of the Ship shall be final and binding on the Buyer insofar as compliance of the Ship (as she is then built and equipped) with this Contract, the Plans and the Specification as demonstrated by the tests is concerned (with the exception of any outstanding defects or disputed defects) and shall preclude the Buyer from refusing formal tender of the Ship for delivery provided that : |
(i) | the Builder then maintains the Ship, as technically accepted by the Buyer, in full accordance with this Contract, the Plans and the Specification; and | ||
(ii) | the Builder fully complies with all preconditions and other requirements for delivery as provided in this Contract. |
1.14 | For the avoidance of doubt, all time used and costs expended in removing or otherwise remedying any defects, in making any necessary alterations and in carrying out all necessary tests and retests shall be for the Builders account and shall not result in any extension of the Delivery Date or increase in the Contract Price. |
1.15 | If: (i) the Ship has been completed in full accordance with this Contract, the Plans and Specification apart from defects of a minor nature (each a minor defect ) meaning defects that in and of themselves, and also in the process of being remedied: (a) do not and will not adversely affect the seaworthiness of the Ship; or (b) do not and will not prevent the unrestricted use of the Ship in its intended service and purpose as described in the Plans and the Specification; or (c) do not and will not prevent the commercial functional use of any of the Ships passenger accommodation or any of the areas designated in the Specification as public spaces, or in any other way adversely affect the comfort or safety of the Ships passengers; or (d) do not and will not affect the safety of the Ships crew or their ability to carry out their duties in a safe working environment and with appropriate accommodation; or (e) do not and will not adversely affect the operational efficiency of the Ship; or (f) do not and will not involve any condition, qualification, recommendation, reservation or restriction in relation to any certificate issued (or to be issued) by the Classification Society or any Regulatory Authority which in the opinion of the Buyer (acting in good faith and being reasonable) is or could be material in a commercial or technical sense; and (ii) the Builder undertakes in writing to remedy defects at the Builders entire risk and expense, without any interruption to the Ships service to passengers, and with all convenient speed in accordance with a remedial plan and timetable approved by the Buyer (acting in good faith and being reasonable), then the Buyer shall not be entitled to withhold its technical acceptance of the Ship. From the time when the first Work inspections and approvals are to be made and given on behalf of the Buyer, the Builder and the Buyer shall jointly maintain a written record (the Defects List ) in the form of a list of defects (including minor defects) noted on |
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behalf of the Buyer. The Builder and the Buyer, each acting reasonably and in good faith, shall update the Defects List at regular intervals to reflect the addition and removal of defects. | ||
1.16 | All defects in the Ship at the time of her final acceptance, whether or not recorded in the Defects List, shall qualify as defects covered by the Builders guarantee and shall be remedied pursuant to Clause 2 of Article 7. However, if before delivery and final acceptance of the Ship under Clause 1.4 of Article 7, a duly authorised representative of the Buyer expressly in writing waives its right to require the Builder to remedy a particular defect recorded in the Defects List, or accepts the Builders remedy of a particular defect, then the defect in question will be outside the scope of the Builders guarantee unless it recurs during the Guarantee Period notwithstanding the Builders remedial works before of after delivery or a new defect arises in the same Part. |
1.17 | The tests that are to be carried out after delivery shall be performed in the manner, under the conditions and in accordance with the timetable provided for in the Specification. Defects discovered during such tests shall qualify as defects covered by the Builders guarantee and shall be remedied pursuant to Clause 2 of Article 7. | |
2. | LIQUIDATED DAMAGES |
2.1 | The Builder agrees that certain deficiencies and certain delays in the delivery of the Ship shall oblige it to pay to the Buyer, by way of agreed and final liquidated damages and not as penalties, the compensation provided for in this Clause 2. |
2.2 | The speed of the Ship shall be demonstrated and tested during the sea trials tests under the conditions described in [**] [Confidential Treatment] of the Specification. |
2.3 | If the Builder before delivery fails to remedy any deficiency in the Guaranteed Service Speed or GSS, the Builder shall have no liability to the Buyer if the actual speed of the Ship as determined during the final sea trials tests is up to [**] [Confidential Treatment] of a knot below GSS but commencing with a deficiency of more than [**] [Confidential Treatment] of a knot below the GSS the Builder shall pay liquidated damages to the Buyer as follows for a speed between: |
(i) | [**] [Confidential Treatment] knots, a total sum of [**] [Confidential Treatment]; | ||
(ii) | [**] [Confidential Treatment] knots, a total sum of [**] [Confidential Treatment]; | ||
(iii) | [**] [Confidential Treatment] knots, a total sum of [**] [Confidential Treatment]; | ||
(iv) | [**] [Confidential Treatment] a total sum of [**] [Confidential Treatment]; | ||
(v) | [**] [Confidential Treatment] knots, a total sum of [**] [Confidential Treatment]; |
provided that if the speed deficiency is more than [**] [Confidential Treatment] knot below the GSS, then the Buyer may, at its option, accept the Ship upon payment by the Builder of liquidated damages for such deficiency of [**] [Confidential Treatment] or reject the Ship and terminate this Contract pursuant to Clause 2 in Article 9. |
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2.4 | The fuel consumption of each main engine of the Ship shall be demonstrated and tested in tests conducted at the engine manufacturers test bed under the conditions described in [**] [Confidential Treatment] of the Specification. |
2.5 | If the Builder before delivery fails to remedy any deficiency in the fuel consumption of any of the Ships main engines, the Builder shall have no liability to the Buyer if such fuel consumption as determined during the final tests is more than the Guaranteed Fuel Consumption or GFC provided such excess is not more than [**] [Confidential Treatment] over the GFC but commencing with an excess of more than [**] [Confidential Treatment] in actual fuel consumption the Builder shall pay liquidated damages to the Buyer for each such engine in the sum of [**] [Confidential Treatment] for each full [**] [Confidential Treatment] (provided that if the Builders back to back position against its against the engine supplier entitles the Builder to claim fractions of a % calculated in proportion, the Buyer shall have the same entitlement against the Builder under this provision) increase in fuel consumption above such [**] [Confidential Treatment] level up to a maximum of [**] [Confidential Treatment] over the GFC provided that if the fuel consumption is more than [**] [Confidential Treatment] above the GFC, the Buyer may, at its option, accept the Ship upon payment by the Builder of liquidated damages for such deficiency of [**] [Confidential Treatment] or reject the relevant engine. |
2.6 | The deadweight capacity of the Ship shall be demonstrated by the Builder in the specified deadweight capacity test under the conditions described in [**] [Confidential Treatment] of the Specification. |
2.7 | If the Builder fails to remedy any deficiency in the Ships deadweight capacity before delivery, the Builder shall have no liability to the Buyer if the actual deadweight capacity of the Ship as determined in accordance with the Specification is less than [**] [Confidential Treatment] metric tons below the Guaranteed Deadweight capacity but the Builder shall pay liquidated damages to the Buyer in the sum of [**] [Confidential Treatment] for each full metric ton of such deficiency being more than [**] [Confidential Treatment] metric tons up to a maximum deficiency of [**] [Confidential Treatment] metric tons at a draft of not more than [**] [Confidential Treatment] even keel provided that if the actual deadweight deficiency at a draft of not more than [**] [Confidential Treatment] even keel is more than [**] [Confidential Treatment] metric tons, the Buyer may, at its option, accept the Ship against the Builders payment of liquidated damages in the amount of [**] [Confidential Treatment] for such deficiency or reject the Ship and terminate this Contract pursuant to Clause 2 in Article 9. |
2.8 | The guaranteed cabin capacity of the Ship shall be as defined in [**] [Confidential Treatment] of the Specification and no change shall be made to such cabin capacity without the Buyers prior written consent. |
2.9 | If the actual number of either the passenger or crew cabins is lower than the number of passenger and crew cabins as defined in [**] [Confidential Treatment] of the Specification, the Builder shall pay liquidated damages to the Buyer in the sum of [**] [Confidential Treatment] for each passenger or crew cabin deficiency. If any such cabin deficiency: |
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(a) | exceeds [**] [Confidential Treatment] passenger cabins the Buyer may, at its option, accept the Ship against the Builders payment of liquidated damages in the amount of [**] [Confidential Treatment] euros for such deficiency or reject the Ship and terminate this Contract pursuant to Clause 2 in Article 9; and/or | ||
(b) | exceeds [**] [Confidential Treatment] crew cabins the Buyer may, at its option, accept the Ship against the Builders payment of liquidated damages in the amount of [**] [Confidential Treatment] euros for such deficiency or reject the Ship and terminate this Contract pursuant to Clause 2 in Article 9. |
2.10 | The columns under the heading of Column A in Schedule 7 describe: the maximum sound and vibration levels and related tolerances and graces defined by the Classification Society notation DNV Comf V (1) (the S & V Notation ); and the application of the S & V Notation to and between the suites, cabins and other public spaces on board the Ship (the spaces ) referred to in such columns. |
2.11 | The Builder shall carry out the Works so that, at delivery, the Ship achieves the S&V Notation. |
2.12 | If any of the sound and vibration levels in the spaces as tested and measured in accordance with the testing and measurement procedures referred to in [**] [Confidential Treatment] of the Specification exceed any of the sound or vibration level or space number or area tolerances and graces defined by the S & V Notation, before the Delivery Date the Builder shall take all such remedial steps and make all such further tests and measurements as may reasonably be required (i) to reduce the levels, numbers and areas to within the applicable S & V Notation tolerances and graces referred to in the columns under the heading of Column A in Schedule 7, and (ii) to demonstrate the complete and permanent correction of the relevant deficiencies. |
2.13 | If the Builder is unable to reduce the relevant levels, numbers and areas to within the applicable S & V Notation tolerances and graces, and to demonstrate the complete and permanent correction of the relevant deficiencies, the Builder shall be obliged to pay liquidated damages to the Buyer at the applicable rates per space specified in the Liquidated Damage columns under the heading of Column B in Schedule 7 for every space in which the measured levels of sound or vibration exceed the peak level for such space specified in the Limit column under the heading of Column B of Schedule 7. |
2.14 | If, after taking into account the applicable S & V Notation space, number and area tolerances and graces, the measured levels of sound or vibration in any space exceed the peak level for such space specified in the Limit column under the heading of Column B of Schedule 7 and the peak number and area allowance specified in the Number(s) and Area columns under the heading of Column B of Schedule 7 then the Buyer may, at its option, accept the Ship against the Builders payment of the aggregate total liquidated damages for all sound and vibration deficiencies calculated in accordance with Schedule 7 or the Buyer may reject the Ship and terminate this Contract pursuant to Clause 2 in Article 9. |
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2.15 | For the avoidance of doubt, the parties agree that the tolerances referred to in the columns under the heading of Column B in Schedule 7 shall be read and applied as overlapping with and not as additional to the tolerances and graces defined by the S & V Notation in the columns under the heading of Column A in Schedule 7. |
2.16 | The Buyer intends to arrange for the Ships first cruise with fare paying passengers to be held on the [**] [Confidential Treatment]. The Builder: |
(i) | acknowledges that it is imperative for the Ship to be ready at the time, and in the condition, provided for in this Contract so as to enable the Buyer to fulfil its commitments in relation to the Ships first cruise; and | ||
(ii) | agrees to do all it can to assist the Buyer to fulfil its commitments in relation to the Ships first cruise. |
2.17 | If delivery of the Ship is not made on the Compensation Date, the Buyer will suffer loss and damage (including reputational damage) in amounts which are extremely difficult to quantify in advance but it is agreed by the Builder and the Buyer that the per day sums set out in paragraphs (i) to (iv) below represent a genuine and reasonable estimate of the Buyers loss and damage for each day of delay in delivery of the Ship beyond the Compensation Date and that they constitute the final compensation payable by the Builder to the Buyer for delay in delivery of the Ship beyond the Compensation Date. If delivery of the Ship is delayed beyond the Compensation Date, the Builder shall be obliged to pay to the Buyer by way of the liquidated damages for each calendar day (or pro-rata for each part of a calendar day) at the per rates set out at paragraphs (i) to (iv) below from (and including) the Compensation Date until delivery of the Ship is actually made or this Contract is terminated: |
(i) | if the Builder shall have given to the Buyer less than or equal to thirty (30) days notice of the delay in delivery prior to the Delivery Date: |
(a) | for the first [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(b) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(c) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(d) | for the [**] [Confidential Treatment] the rate shall be [**] [Confidential Treatment] per day; |
(ii) | if the Builder shall have given to the Buyer more than thirty (30) days but less than or equal to ninety (90) days notice of the delay in delivery prior to the Delivery Date: |
(a) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; |
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(b) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(c) | for the [**] [Confidential Treatment] days the rate shall [**] [Confidential Treatment] per day; | ||
(d) | for [**] [Confidential Treatment] the rate shall be [**] [Confidential Treatment] per day; |
(iii) | if the Builder shall have given to the Buyer more than ninety (90) days but less than or equal to one hundred and eighty (180) days notice of the delay in delivery prior to the Delivery Date: |
(a) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(b) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(c) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(d) | for [**] [Confidential Treatment] the rate shall be [**] [Confidential Treatment] per day; |
(iv) | if the Builder shall have given to the Buyer more than one hundred and eighty (180) days notice of the delay in delivery prior to the Delivery Date: |
(a) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(b) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(c) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; |
If the delay in delivery of the Ship continues for 240 (two hundred and forty) days after the Compensation Date then, in such event, the Buyer may at any time thereafter terminate this Contract pursuant to Clause 2 in Article 9. If the delay in delivery of the Ship continues for 271 (two hundred and seventy one) days after the Compensation Date, and provided the Buyer has not by then elected to terminate this Contract, the Builder may (by written notice) require the Buyer to make an election in which case the Buyer shall within 15 (fifteen) days after its receipt of the Builders notice notify the Builder in writing of its intention either to terminate this Contract or to consent to the acceptance of the Ship at an agreed future date on the basis that the Buyer shall remain entitled to all liquidated damages which would otherwise have been payable or allowable by the Builder in accordance with the provisions of this Contract; it being further understood that, if the Ship is not delivered by such agreed future date, the Buyer shall have the same right of termination upon the same terms and conditions as set out above. If the Buyer fails to make an election as specified above within the relevant 15 (fifteen) days |
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period, the Buyer shall be deemed to have consented to the Ship being delivered at the future date proposed by the Builder. | ||
2.18 | In no event shall the aggregate of final liquidated damages payable by the Builder to the Buyer in accordance with this Clause 2 exceed [**] [Confidential Treatment]. | |
2.19 | The amounts of all liquidated damages payable under this Clause 2 shall be determined and paid to the Buyer on delivery of the Ship or when applicable on termination of the Contract. | |
2.20 | The parties acknowledge and agree that: |
(i) | the liquidated damages provided for in the sub-clauses of Clause 2 in respect of speed, deadweight, fuel consumption, sound and vibration, and delay are cumulative and not exclusive so that, when applicable, the Buyer may claim under one or more of such sub-clauses in respect of the same event; and | ||
(ii) | subject always and without prejudice to the guarantee provisions in Article 7 Clause 2 and to the termination provisions in Article 9 Clause 2, the liquidated damages provided for in this Clause 2 shall be the only compensation recoverable by the Buyer in respect of the breaches of Contract to which they relate and, in particular, the Builder shall not be liable for any loss of profit, loss of revenue or other consequential losses resulting from such breaches. |
2.21 | The Builder hereby irrevocably and unconditionally waives all rights whatsoever to claim that the any of the entitlements intended to be conferred on the Buyer to claim liquidated damages under any of the express provisions of this Contract are in any manner or to any extent void, invalid or unenforceable as being in the nature of penalties. However, if for any reason the enforcement of any of the Buyers claims for liquidated damages is prohibited by any applicable law or if any express provision of this Contract relating to liquidated damages is rendered void, invalid or enforceable by applicable law, the Builder shall nonetheless be liable to pay general damages in respect of the relevant breach of its obligations under this Contract provided that the Builders liability in such circumstances shall not exceed the liability that the Builder would have had to pay liquidated damages for such breach under the express provisions of this Contract. |
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1. | DELIVERY AND ACCEPTANCE |
1.1 | The Ship shall be ready for delivery at the Shipyard on 16th of November 2009 (the Delivery Date ). The Ship shall not be delivered before this date without the express written approval of the Buyer. When: |
(i) | the Builder has completed the Work in compliance with this Contract, the Plans and the Specification; | ||
(ii) | all tests have been performed and completed in accordance with this Contract, the Plans and the Specification, the parties have agreed the Defects List, and the remedial plan and timetable referred to in Article 6, Clause 1.15; | ||
(iii) | the Ship (a) (in accordance with the Builders usual practices and to their usual standards for ships of this type) has been cleaned and prepared so that she is ready to take on a full complement of passengers, officers, crew and staff, and (b) is in all other respects ready to enter service as a passenger cruise ship; | ||
(iv) | the Builder has removed from the Ship all unused construction materials and debris, and otherwise left the Ship in a clean and safe ready for sea condition, |
the Builder shall tender the Ship for delivery to the Buyer safely afloat alongside a safe and accessible quay at the Shipyard where there must be sufficient water for the Ship always to remain afloat and from where there must be direct, free, unimpeded, safe and lawful access to international waters provided that the Builder shall have given to the Buyer not less than 15 (fifteen) Working Days definite, prior written notice of delivery. | ||
1.2 | The Builder shall deliver the Ship to the Buyer with full title guarantee, and free and clear of all encumbrances (including, without limitation, all Mortgages) whatsoever. |
1.3 | On delivery of the Ship the Builder shall also deliver the following documents (together, the Delivery Documents ): |
(i) | a Protocol of Delivery and Acceptance in the form of Schedule 2 confirming delivery of the Ship to, and acceptance and taking possession of the Ship by, the Buyer pursuant to this Contract, executed in two original counterparts by the Builder and the Buyer and stating the date and (local) time of such delivery and acceptance; | ||
(ii) | a declaration of warranty by the Builder in a mutually agreed form confirming that the Ship is delivered to the Buyer free and clear of all encumbrances whatsoever (including, without limitation, all Mortgages and other obligations and all liabilities of the Builder arising from the financing, the construction or the operation of the Ship for the purposes of the tests or otherwise before delivery) and that the Ship is absolutely free of all burdens in the nature of imposts, taxes or other charges imposed by the national, provincial, local or port authorities of France; |
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(iii) | a detailed inventory showing the machinery and equipment installed on the Ship and the spares, stores and other consumable items delivered with the Ship; | ||
(iv) | the makers certificates, Subcontractors instruction books, and all of the Classification Society, trading and other certificates (each free of conditions, qualifications, recommendations, reservations and restrictions) required to be supplied upon delivery of the Ship pursuant to this Contract and the Specification, and the Buyer will accept provisional certificates provided that : (a) they do not to any extent impair the Buyers ability to register, finance, insure or operate the Ship in its intended service; and (b) the Builder undertakes to deliver fully compliant permanent certificates as soon as they are available from the relevant issuing authority; | ||
(v) | a protocol showing the results of the tests; | ||
(vi) | a non-registration or deletion certificate issued by the competent French authorities; | ||
(vii) | a commercial invoice for the Ship and all other amounts payable by the Buyer on delivery; | ||
(viii) | a builders certificate in a form acceptable to the Buyer, notarised and legalised in accordance with the Buyers instructions, and such other written instruments as may be strictly necessary, to confirm that full and clean title in the Ship has been vested in the Buyer and to enable the Buyer to register the Ship under the Flag State; | ||
(ix) | a full set of the drawings, plans and other construction documents provided for in the Specification; | ||
(x) | if required by the Buyers financiers, such documents as may be necessary to prove the authority of the parties respective representatives to sign the documents to be executed on behalf of the Builder and the Buyer in connection with delivery of the Ship. |
1.4 | Acceptance of the Ship by the Buyer shall be accomplished by: |
(i) | the signature by the Buyer and the Builder of two (2) original counterparts of the Protocol of Delivery and Acceptance; and | ||
(ii) | payment by the Buyer to the Builder of that part of the Contract Price and all other sums that the Buyer is required to pay upon delivery of the Ship pursuant to the provisions of this Contract. |
1.5 | The Buyer shall be afforded five (5) days free of any wharfage or any other charge, and up to three (3) further days at the usual wharfage fee charged by the relevant port authority, within which to remove the Ship from her point of delivery. |
1.6 | The following consumables remaining on board at delivery of the Ship shall be jointly inventoried by the Builder and the Buyer, and the Buyer shall pay for them at the Builders actual cost price: lubricating oils in storage tanks, fresh water, diesel oils and |
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fuel oils. The Builder shall remove all waste-oil and sludge from the Ship at the Builders risk and expense prior to delivery. The Buyer shall not be obliged to pay for the Ships ballast. |
1.7 | Acceptance of the Ship and the related Delivery Documents by the Buyer under this Clause 1: |
(i) | shall signify that the Buyer has taken possession and the risk of loss of the Ship and the related Delivery Documents as of the time and date set out in the Protocol of Delivery and Acceptance and that the Builder may terminate the Insurances; and | ||
(ii) | shall not be deemed to constitute a waiver of or otherwise prejudice any of the Buyers rights under Clause 2 of this Article 7 with respect to any defect, whether known or unknown, and whether or not noted in any document delivered in connection with delivery and acceptance of the Ship, which may exist in the Ship at the time it is accepted by the Buyer, and any such defect may be reported to, and shall be remedied at the sole and direct risk and expense of, the Builder under the guarantee provided in Clause 2. |
1.8 | At the time of the Ships delivery to the Buyer under this Contract, the Buyer will register the Ship under the flag and laws of the Bahamas (the Flag State ), with Nassau as the Ships home port, and all fees and charges relating to such registration shall be for the account of the Buyer. | |
2. | GUARANTEE |
2.1 | Subject to the express provisions of this Clause 2, the Builder guarantees the Ship and all Parts against all defects for the period of [**] [Confidential Treatment], (subject to any extension thereof as provided for in this Clause 2) from the date of the Ships actual delivery to the Buyer under Article 7, Clause 1.4 (the Guarantee Period ). |
2.2 | In calculating the length of the Guarantee Period there shall be excluded any day(s) during which the Ship is prevented from entering or is taken out of service solely on account of any defect in the Ship or in any Part for which the Builder is responsible under this Clause 2. |
2.3 | Where any defect in the Ship or any Part is remedied during or after the Guarantee Period, the Builders guarantee under this Clause 2 shall apply to such remedial Work for the longer of [**] [Confidential Treatment] from the date on which the remedial Work was completed and the end of the period specified in Clause 2.1 above so that the Guarantee Period for such items shall not exceed [**] [Confidential Treatment]. The [**] [Confidential Treatment] time limit shall apply to the Guarantee Period as calculated under the provisions of this Clause 2. |
2.4 | If any remedial works made or agreed to be made by or on behalf of the Builder before, during or within 30 days after the Guarantee Period (or any extension thereof under this Clause 2) indicate any recurring defect (meaning any defect that requires two (2) or more |
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repairs, replacements or modifications due to the same cause), the Builder shall take the following steps as soon as reasonably possible: |
(i) | promptly perform a root cause analysis; and | ||
(ii) | ascertain the root cause of such recurring defect and the design modification or other remedial Work required to implement a full and final solution; and | ||
(iii) | remedy such recurring defect, and its root cause, in order to avoid a continuation or repetition of such recurring defect. |
If it is not possible for any defect covered by the Builders guarantee under this Clause 2 to be fully and finally remedied within the Guarantee Period defined above, both the Guarantee Period and the Builders guarantee obligations under this Clause 2 shall be deemed to be extended in respect of such defect until either the Builder has implemented a remedial solution or the Builder has made a commercial settlement with the Buyer which is (in either case) reasonably satisfactory to the Buyer. | ||
2.5 | The Builder shall not be responsible for the remedy of any defect if it is due to: |
(i) | perils of the sea, accident (subject to Builders responsibility under Clause 2.12), negligence (but excluding negligence on the part of the Builder), or improper maintenance or handling (including, without limitation, overloading) of the Ship or any Parts; | ||
(ii) | use of fuels or lubricants not recommended by the relevant manufacturer; or | ||
(iii) | normal wear and tear; | ||
(iv) | any fault in (or caused by) any Buyers Supplies which were properly (a) received, (b) handled, (c) installed or incorporated in, (d) stowed on, or (e) otherwise delivered with the Ship by the Builder in accordance with all of the requirements of this Contract, the Plans and the Specification; or | ||
(v) | subject to the other express provisions of this Clause 2, repairs carried out by anyone other than the Builder, its Subcontractors or other persons nominated or approved by the Builder. |
2.6 | The Buyer shall give written notice to the Builder as soon as possible and in any event within fourteen (14) days after the discovery of any defect for which a claim is made under this Clause 2 and, a copy of each such notice shall also be given to the guarantee engineer, who shall acknowledge receipt by his signature thereof. The Buyers notice shall give full details (so far as possible) as to the nature of the defect and the extent of any damage caused thereby. |
2.7 | Within thirty (30) days after the end of the [**] [Confidential Treatment] referred to in Clause 2.1 as extended by the operation of Clause 2.2, the Buyer (in consultation with the guarantee engineer) will draw up, and send to the Builder, a list identifying every defect for which a claim which is existing on the last day of such period is to be made under this Clause 2 provided that this Clause 2.7 will not preclude |
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the Buyer from giving notice to the Builder of, and making claims in respect of, any defect which is covered by the Builders extended guarantee under Clause 2.3. |
2.8 | Each defect will be remedied by the Builder as soon as reasonably practicable (and the necessary remedial works shall be scheduled so as to minimise disruption to the Ships service and the availability of cabins, public rooms and areas, and other passenger facilities) or, at the Buyers option, under the instruction or supervision of the Builder at a suitably qualified shipyard or workshop selected by the Buyer and approved by the Builder (such approval not to be unreasonably withheld or delayed), and in each case the Builder shall bear and pay: |
(i) | the cost of all equipment, parts, tools and materials reasonably required and incurred to remedy the defect (including, without limitation, the cost of delivering the same to the selected shipyard or workshop by airfreight if the Buyer reasonably so requires, and the cost of returning any defective equipment, parts and materials); | ||
(ii) | the cost of all labour reasonably required and incurred to remedy the defect including, without limitation, the expenses of independent contractors in travelling to the Ship; | ||
(iii) | the cost of any necessary underwater inspection of the Ship by divers; and | ||
(iv) | where the Ship is drydocked exclusively on account of the need to remedy any defect in the Ships external underwater parts at any time before the Ships first scheduled drydocking after delivery (provided that the remedy of such defect cannot reasonably be postponed until the Ships first scheduled drydocking), the drydocking costs and the costs of remedying any defect that is covered by the Builders guarantee obligations under this Clause 2. |
The Buyer agrees to use the normal diligence and business practices of a competent shipowner with a view to minimising the cost of remedial works carried out by anyone other than the Builder, its Subcontractors or other persons nominated by the Builder. | ||
For the avoidance of doubt, in view of the intended area of the Ships operation during the Guarantee Period, the Builder will not be entitled to require the Ship to be returned to any of the Builders facilities for the remedy of any defects. | ||
If the Buyer discovers any defect which (in the reasonable opinion of the Buyer) requires remedial action on an urgent basis, the Buyer will (acting in good faith) give such notice to the Builder as is practicable in the circumstances then prevailing (the intention being that, circumstances permitting, the Builder shall have a reasonable opportunity to take necessary actions to remedy the defect on an urgent basis, to obtain necessary remedial instructions from the relevant Subcontractor(s) and to relay such instructions to the Buyer) and thereafter the necessary remedial works (if not carried out by the Builder) may be carried out by the Ships crew or, if practicable having regard to the degree of urgency, by the nearest suitably qualified shipyard or workshop selected by the Buyer, and in each such case the Builder shall reimburse the Buyer for the costs described in Clause 2.8(i), (ii), (iii) and (iv) above. The Buyer agrees to use the normal diligence and |
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business practices of a competent shipowner with a view to minimising the cost of such remedial works. | ||
2.9 | At the Buyers request after final completion of the remedial works to be made or paid for by the Builder under this Clause 2 in respect of a particular aspect of the Work or any Part, the Builder will: |
(i) | assign to the Buyer, to the fullest extent possible and without any charge to the Buyer, that part of every contractual warranty or guarantee given by any Subcontractor with respect to the particular aspect of the Work or Part which extends beyond the Guarantee Period or which is otherwise more favourable to the Buyer than the guarantee of the Builder under this Clause 2; or | ||
(ii) | if it is not possible fully and effectively to assign the relevant part of any such contractual warranty or guarantee, hold and enforce the relevant contractual warranty and guarantee as trustee and agent for the Buyer and promptly account to the Buyer for all monies received in or pursuant to the holding or enforcement of any such contractual warranty or guarantee. |
2.10 | The Builder shall, at its sole risk and expense (except for the cost of suitable accommodation and food on board the Ship which shall be supplied free of charge by the Buyer), employ and place a suitably qualified and experienced English-speaking guarantee engineer acceptable to the Buyer on board the Ship for so long as the Buyer may reasonably require during the Guarantee Period and thereafter until the Builder has remedied every defect to which this Clause 2 applies but in any event no more than 180 (one hundred and eighty) days in aggregate. Not later than fifteen (15) days before delivery of the Ship, the Builder shall provide to the Buyer for its approval (which is not to be unreasonably withheld) the name and credentials of the proposed guarantee engineer. If at any time the Buyer considers the guarantee engineers performance of his duties to be unsatisfactory, the Buyer may by notice to the Builder request the replacement of the guarantee engineer. The Builder shall promptly investigate the Buyers complaint and, if the complaint is justified, the Builder shall (without any cost or liability to the Buyer) effect a suitable replacement acceptable to the Buyer as soon as may be practicable in the prevailing circumstances. |
2.11 | If: |
(i) | any defect in the Ships external underwater parts is discovered during the Guarantee Period or the period of thirty (30) days referred to in Clause 2.7; or | ||
(ii) | any defect in the Ships external underwater parts is discovered either during the Ships first scheduled drydocking after delivery provided that the first scheduled dry-docking occurs within twenty-four months after delivery of the Ship or, if there is no scheduled dry-docking within this period, under a joint underwater inspection under Classification Society supervision which is to be carried out as close to the end of such twenty four months period as may be convenient having regard to the Ships itinerary and the need to select a suitable location for such under water inspection. The costs (including the costs of attendance of the Classification Societys representative) of such inspection shall be borne by the |
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Builder if any defect is discovered for which the Builder is responsible under this Clause 2 and otherwise such costs shall be borne by the Buyer, |
and if the Classification Society imposes a condition in respect of a defect in such underwater parts for which the Builder is responsible under this Clause 2 and requires the defect to be remedied before the next Ships scheduled drydocking the Builder shall be responsible for the necessary remedial works and the associated drydocking costs. Otherwise, the Buyer shall bear and pay for the haul day and any associated drydocking costs incurred in the ordinary course of the Ships next scheduled drydocking maintenance and the Builder, in addition to the costs of all necessary remedial works, shall bear and pay for such additional drydocking day(s) as may be required to remedy such defect. | ||
2.12 | Without prejudice to the Builders obligations and liabilities under the other express provisions of this Clause 2, the Builder shall not be responsible for any loss or damage caused by any defect except: |
(i) | that, in addition to the other guarantee obligations specified in this Clause 2, the Builder shall be obliged to remedy (or, as provided for in the preceding paragraphs of this Clause 2, to pay for the remedy of) any equipment or part of the Ship that is physically damaged as a direct and proximate result of any defect covered by the Builders guarantee under this Clause 2; | ||
(ii) | for any physical damage directly caused by the Builders remedy of any defect; and | ||
(iii) | for any physical damage directly caused by the wrongful refusal or failure of the Builder or its Subcontractors to remedy (or authorise the remedy) of any defect. |
2.13 | Any sum(s) payable by the Builder under this Clause 2 shall be due and payable as set out in Article 8. |
2.14 | Except as otherwise expressly provided in Clause 2.11, the Builder shall not be responsible or liable for any defect discovered after the expiry of the Guarantee Period (as the same is defined and extended pursuant to this Clause 2), loss of time due to repair or for any loss of profit, loss of revenue or other consequential losses suffered by the Buyer by reason of any defect. Furthermore, the guarantee under this Clause 2 replaces and excludes any warranty, liability, term and/or condition imposed or implied by any law, custom or usage and save as otherwise expressly provided for in this Contract, the Plans or the Specification the Builder makes no warranty/condition of merchantability or fitness of the Ship or any Part thereof for any particular purpose. |
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1. | CONTRACT PRICE | |
1.1 | The Contract Price for the Ship: |
(i) | shall be EUR735,000,000 (seven hundred and thirty five million euros); and | ||
(ii) | is a fixed price and may be adjusted only in strict accordance with, and subject to, the express provisions of this Contract. |
1.2 | For the avoidance of doubt: |
(i) | the Contract Price includes the cost of the Ship, completed in accordance with the requirements of this Contract, the Specification and the Plans; | ||
(ii) | the Contract Price includes the cost of all Work and the cost of all surveys, tests and trials of the Ship to be performed by, or on behalf of, the Builder or any third parties including the Classification Society and the Regulatory Authorities; | ||
(iii) | the Contract Price includes the cost of procuring the classification notation for the Ship, and of obtaining all certificates and other documents which are required to be delivered pursuant to this Contract, the Specification and the Plans; | ||
(iv) | the Contract Price includes all other costs and expenses of the Builder as provided for herein or otherwise incurred by the Builder unless expressly provided for in this Contract as being for the Buyers account; | ||
(v) | without prejudice to the express rights and obligations of either party under the other provisions of this Contract (including, without limitation, in relation to AOMs agreed between the parties), the Buyer shall have no liability for any increases in the Builders costs of performing the Contract of any nature whatsoever; and | ||
(vi) | all fees and charges incidental to the registration of the Ship under the flag and laws of the Flag State shall be for the account of the Buyer. |
2. | PAYMENTS | |
2.1 | Payment of the Contract Price shall be made to the Builder as follows: |
(i) | [**] [Confidential Treatment] within 3 (three) Working Days after the Effective Date; | ||
(ii) | [**] [Confidential Treatment] on first steel cutting but not before 14th September 2007; | ||
(iii) | [**] [Confidential Treatment] on completion of keel laying (and for these purposes keel laying will be deemed to have taken place when the first prefabricated steel block has been completed |
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and located in its final position in the building dock at the Shipyard) but not before [**] [Confidential Treatment]; | |||
(iv) | [**] [Confidential Treatment], on the date the Ship is launched into the water at the Shipyard (and for these purposes launching will be deemed to have taken place when the Ship is safely afloat provided that the Ships hull and primary internal structural parts are by then fully welded out and that the Classification Society has confirmed in writing that there is adequate completion of the hull for launching) but not before [**] [Confidential Treatment]; and | ||
(v) | the balance of the Contract Price, on the date of delivery and acceptance of the Ship and the Delivery Documents in accordance with the express provisions of this Contract. |
2.2 | The Builder shall by not less than fourteen (14) days advance written notice advise the Buyer of the date upon which each of the payments referred to sub-clauses 2.1(ii) to (iv) shall become due and payable and, in addition, the notice given in relation to sub-clause 2.1(v) will show (in reasonable detail and on an open-book basis as this expression is defined in Article 3) the Builders calculation of the balance of the Contract Price payable on delivery of the Ship and, in particular, the amounts of any reductions in or additions to the Contract Price occasioned by the terms and conditions of this Contract. | |
2.3 | The Buyers obligations to make the payments referred to in sub-clauses 2.1(i) to (iv) shall, in the case of each such payment, be subject to and conditional upon the Buyers receipt of: |
(i) | the Builders invoice for the relevant payment; and | ||
(ii) | an irrevocable refund guarantee ( Refund Guarantee ) issued in favour of the Buyer in the form set out in Schedule 2 by a first class bank, insurance company or financial institution ( Refund Guarantor ) acceptable to the Buyer (such acceptance not to be unreasonably withheld) securing the refund to the Buyer of the relevant payment together with interest thereon at the Relevant Rate calculated from the date of the Builders receipt of such payment to the date of the Buyers receipt of the refund. |
The Buyers obligation to make the payment referred to in sub-clause 2.1(v) shall be subject to and conditional upon the Buyers receipt of the Builders invoice for the relevant payment and signature of the Protocol of Delivery and Acceptance on behalf of the Buyer and the Builder. | ||
2.4 | The other payments from time to time due under this Contract shall be made as follows: |
(i) | any amount for which a specific payment date is stipulated in this Contract shall be paid on such date; | ||
(ii) | payment or credits for any modifications pursuant to Article 3 (together with an appropriate interest payment or credit, calculated at the Relevant Rate, from the date(s) specified in the relevant AOMS or as determined under Article 13, |
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Clause) shall be made simultaneously with delivery of the Ship and the relevant amounts shall be shown in the invoices to be issued and delivered by the Builder in respect of the Contract Price under Clause 2.1 (v); | |||
(iii) | payment of any other amounts accruing prior to delivery shall be made simultaneously with delivery of the Ship, and the relevant amounts shall be shown in the invoice to be issued and delivered by the Builder in respect of the Contract Price payment referred to in Clause 2.1(v) and | ||
(iv) | for any amount accruing after delivery in respect of a defect covered by the Builders guarantee under this Contract, payment shall be made as follows: |
(a) | if the parties agree that the defect in question is covered by the Builders guarantee under this Contract, not later than fifteen (15) days after the Builders receipt of an invoice for the defect remedied pursuant to Clause 2 in Article 7; or | ||
(b) | if there is a Dispute as to whether or not the defect is covered by the Builders guarantee under this Contract, on the date on which it is finally determined or adjudged to be a defect under Article 13, together with interest thereon at the Relevant Rate calculated from the date of the Builders receipt of an invoice for the defect remedied pursuant to Clause 2 in Article 7 up to and including the date of the Buyers receipt of the relevant amount. |
2.5 | Every amount from time to time due under this Contract but unpaid for longer than three (3) days from (and excluding) the due date shall bear interest at the Relevant Rate from the due date up to and including the date of receipt by the party to which the amount is owed. | |
2.6 | If the Buyer fails to make any payment when it is due under sub Clauses 2.1(i), (ii), (iii) or (iv), such failure is not due to a default or breach of this Contract by the Builder, and such failure continues for longer than seven (7) days from (and excluding) the due date, then without prejudice to its other obligations under this Contract the Builder shall be entitled (after giving written notice to the Buyer) to suspend performance of all Work from the date on which the notice is given until the date of receipt of the unpaid sum in the Builders Account. In the event of such a suspension, the Delivery Date shall be automatically extended by the actual period of suspension of the Work. | |
2.7 | All amounts payable to the Builder under this Contract shall be paid direct to the Builders Account, and the Builder and the Buyer shall consult with each other about the mode of payment with a view to reducing the amount of any applicable bank transfer charges. | |
2.8 | All payments made by the Buyer to the Builder on account of the Contract Price before delivery and acceptance of the Ship shall be in the nature of advances to the Builder. | |
2.9 | Neither party shall be entitled to set off any claims against payments due to the other under this Contract. |
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2.10 | Payments made by either party to the other under this Contract shall not be construed as a waiver of the right of one party to challenge the other as to the amount due or the due date of any such payments. | |
2.11 | All fees, costs and other charges (including taxes and other amounts payable in respect of bank transfers) whatsoever arising in connection with: |
(i) | each guarantee issued under Clause 2.3 (including, without limitation, fees and other costs or charges payable to the relevant bank(s) and/or insurance company(ies) in respect of the issuance and maintenance thereof) shall be borne and paid by the Builder; and | ||
(ii) | the remittance of payments made under this Contract shall be borne and paid by the paying party. |
2.12 | The euro is the currency of account and payment for each and every sum at any time due from either party to the other under or in connection with this Contract. |
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1.1 | Each of the following events shall be a Builder Termination Event for the purposes of this Contract: |
(i) | if the Buyer fails to pay any part of the Contract Price under any of Clauses 2.1 (i), (ii), (iii) or (iv) in Article 8 on the due date for such payment and such failure is not remedied within ten (10) Working Days after the receipt by the Buyer of a written notice from the Builder notifying the Buyer of such failure and requesting remedial action; or | ||
(ii) | if the Buyer fails to accept delivery of (and pay the balance of the Contract Price for) the Ship within two (2) Working Days after the Ship and the related Delivery Documents have been duly tendered for delivery by the Builder in compliance with this Contract, the Plans and the Specification; or | ||
(iii) | if any of the following events or circumstances shall occur before the Buyer has accepted delivery of the Ship and paid the balance of the Contract Price (a) a final order shall be made or an effective resolution shall be passed for the winding up of the Buyer (otherwise than by a members voluntary winding up for the purpose of an amalgamation or reconstruction on terms previously approved by the Builder, which approval shall not be unreasonably withheld) or (b) a receiver shall be appointed in respect of the whole or any substantial part of the undertaking of the Buyer or (c) the Buyer shall suspend the payment of its debts or (d) the Buyer shall make an arrangement or composition with its creditors generally or (e) the Buyer shall apply to any court for protection from its creditors generally or (f) the Buyer shall be unable, or shall admit its inability, to pay its debts as they fall due or it shall become or shall be declared insolvent under any applicable law or (g) the Buyer defaults the loan agreement relating to the purchase of the Ship for reasons not attributable to the Builder as a result of which the Buyers financiers terminate their commitment to finance the Ship unless the relevant financing arrangements are reconstituted in a manner reasonably acceptable to the Builder within thirty (30) days or (h) any distress, execution, attachment or other process shall affect the whole or any substantial part of the Buyers business and assets and shall remain undischarged for a period exceeding 21 (twenty one) days or (i) the whole or any substantial part of the Buyers business and assets shall be subject to Compulsory Acquisition by the Bermudian government or any agency thereof for a period exceeding 30 (thirty) days or (j) the Buyers Performance Guarantee or the security thereby given is or becomes wholly or partially invalid, ineffective or unenforceable or the Buyers Guarantor becomes insolvent or enters into proceedings similar to any of those referred to in any of paragraphs (a) to (f) of this Clause 1.1(iii) and the Buyer is unable to propose a substitute guarantee and / or guarantor acceptable to the Builder (such acceptance not to be unreasonably withheld) within ten (10) Working Days after the receipt by the |
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Buyer of a written notice from the Builder requiring replacement of the Buyers Guarantor; or | |||
(iv) | if the Buyer commits a material breach of any of its material obligations under this Contract and fails to remedy any such breach within 60 (sixty) days after receipt of written notice from the Builder requesting remedial action. |
1.2 | At any time after a Builder Termination Event shall have occurred and be continuing, the Builder may, by written notice to the Buyer, terminate this Contract whereupon: |
(i) | title in the Buyers Supplies owned by the Buyer which have been installed or incorporated in the Ship before termination shall pass to the Builder; and | ||
(ii) | the Builder shall retain and apply (in the manner provided for in Clauses 1.4 and 1.5) all payments previously made by the Buyer to the Builder under this Contract. |
1.3 | If the Builder terminates this Contract under Clause 1.2, it may in its free discretion decide either to complete or not to complete the Ship and thereafter the Builder shall endeavour to obtain the best market price reasonably obtainable for the Ship, the Parts and the Buyers Supplies referred to in Clause 1.2 (i) by sale at public auction or tender or private sale. |
1.4 | If the Builder elects to sell the Ship in its completed state the proceeds of sale received by the Builder, and all amounts retained by the Builder under Clause 1.2 (ii) plus a credit for the value of Buyers Supplies previously delivered by the Buyer and either retained by the Builder or its Subcontractors or sold by any of them, shall be applied as follows: |
(i) | firstly, in payment of all unpaid instalments of the Contract Price as at the date of termination together with interest thereon at the Relevant Rate from the respective due dates for payment thereof to the date of application; | ||
(ii) | secondly, in payment of any other amounts payable by the Buyer to the Builder under the express provisions of this Contract as at the date of termination together with interest thereon at the Relevant Rate from the respective due dates for payment thereof to the date of application; | ||
(iii) | thirdly, in payment of the Builders loss of profit being the proved difference (if any) between the profit that the Builder could reasonably have expected to earn if the Contract had not been terminated and the profit actually earned from the sale of the Ship in its completed state; and | ||
(iv) | finally, in payment of any remaining balance to the Buyer, | ||
provided that if the total of such proceeds of sale, such retained amounts and such credit shall be less than the balance due to the Builder under paragraphs (i), (ii) and (iii) of this Clause 1.4, the difference shall be paid by the Buyer to the Builder. |
1.5 | If the Builder elects to sell the Ship in its incomplete state the proceeds of sale received by the Builder, and all amounts retained by the Builder under Clause 1.2(ii) plus a credit |
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for the value of Buyers Supplies previously delivered by the Buyer and either retained by the Builder or its Subcontractors or sold by any of them, shall be applied as follows: |
(i) | firstly, in payment of all costs necessarily and reasonably incurred by the Builder in preparing the Ship for sale (to the extent not already covered by the payments referred to in Clause 1.2(ii) above) together with interest thereon at the Relevant Rate; | ||
(ii) | secondly, in payment of the Builders loss of profit being the proved difference (if any) between the profit that the Builder could reasonably have expected to earn if the Contract had not been terminated and the profit actually earned from the sale of the Ship in its incomplete state; and | ||
(iii) | finally, in payment of any remaining balance to the Buyer, |
provided that if the total of such proceeds of sale, such retained amounts and such credit shall be less than the balance due to the Builder under paragraphs (i) and (ii) of this Clause 1.5, the difference shall be paid by the Buyer to the Builder. | ||
2. | TERMINATION BY BUYER | |
2.1 | Each of the following events shall be a Buyer Termination Event for the purposes of this Contract: |
(i) | if (a) at any time the Buyer can demonstrate clearly that delivery will not be made, for whatever reason or combination of reasons (excepting reasons which entitle the Builder to extension of the Delivery Date under Article 5 or reasons attributable to the Buyer), by the date falling [**] [Confidential Treatment] from [**] [Confidential Treatment] or (b) delivery has not been made, for whatever reason or combination of reasons (excepting only one or more independent defaults by the Buyer), by the date falling [**] [Confidential Treatment] from [**] [Confidential Treatment]; | ||
(ii) | if the Buyer becomes entitled to terminate this Contract under Clause 3.2 in Article 4 or any of Clauses 2.3, 2.7, 2.9, 2.12, 2.14 or 2.17 in Article 6; | ||
(iii) | if the Builder commits a material breach of any of its material obligations under this Contract and fails to remedy any such breach within 60 (sixty) days after receipt of written notice from the Buyer requesting remedial action; | ||
(iv) | if (a) any guarantee issued in favour of the Buyer under this Contract, or the security thereby given, is or becomes wholly or partially invalid, ineffective or unenforceable or (b) the issuer of any such guarantee becomes insolvent or enters into or is subject to any proceedings similar to any of those referred to in any of paragraphs (a) to (g) of Clause 2.1(vi), unless the Builder replaces any such guarantee and (as the case may be) issuer with a new guarantee and (as the case may be) issuer complying with Clause 2.3(ii) of Article 8 within ten (10) Working Days after receipt of written notice from the Buyer requiring such replacement; or |
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(v) | if either (a) the Builder shall fail at any time to effect or maintain the Insurances, or any insurer shall avoid or cancel the Insurances or the Builder shall commit any breach of or make any misrepresentation in respect of the Insurances the result of which is to entitle the insurers to avoid the cover or otherwise to be excused or released from any or all of their liabilities thereunder, or (b) any of the Insurances shall cease for any reason whatsoever to be in full force and effect, unless the Insurances are re-instated or reconstituted in a manner meeting the requirements of this Contract within seven (7) days; or | ||
(vi) | if (a) a final order shall be made or an effective resolution shall be passed for the winding up of the Builder (otherwise than by a members voluntary winding up for the purposes of amalgamation or reconstruction on terms previously approved by the Buyer, which approval shall not be unreasonably withheld) or (b) a receiver shall be appointed in respect of the whole or any substantial part of the undertaking of the Builder or (c) the Builder shall suspend the payment of its debts or (d) the Builder shall make an arrangement or composition with its creditors generally or (e) the Builder shall apply to any court for protection from its creditors generally or (f) the Builder shall be unable, or shall admit its inability, to pay its debts as they fall due or it shall become or shall be declared insolvent under any applicable law or (g) any distress, execution, attachment or other process shall affect the whole or any substantial part of the Builders business or assets and shall remain undischarged for a period exceeding 21 (twenty one) days or (h) the Builder defaults any loan agreement relating to the construction of the Ship for reasons not attributable to the Buyer as a result of which the Builders financiers (including the holder of any mortgage or the beneficiary of any other security granted by the Builder over the Ship, any Parts or the Insurances) terminate their commitment to finance the construction of the Ship or commence the enforcement of their rights against the Builder, the Ship, the Parts or the Insurances) unless the relevant financing arrangements are reconstituted in a manner reasonably acceptable to the Buyer within thirty (30) days or (i) the Ship or the whole or any substantial part of the Builders business or assets shall be subject to Compulsory Acquisition by the French government or any agency thereof for a period exceeding 30 (thirty) days. |
2.2 | At any time after a Buyer Termination Event shall have occurred and be continuing the Buyer may by notice to the Builder terminate this Contract and thereafter the Buyer may (in its free discretion) exercise any of the remedies provided for in Clause 2.3. |
2.3 | The Buyer may: |
(i) | retain and/or claim from the Builder all liquidated damages paid or payable by the Builder to the Buyer under Clause 2.17 in Article 6 subject to the following limits: |
(a) | if the Builder shall have given the Buyer more than one hundred and eighty (180) days notice of the delay in delivery prior to the Delivery Date, in no event shall the aggregate final liquidated damages payable by the Builder to the Buyer in respect of such delay exceeds the sum of [**] [Confidential Treatment]; | ||
(b) | if the Builder shall have given the Buyer more than ninety (90) days and less than or equal to one hundred and eighty two (182) days notice of the delay in delivery prior to the Delivery Date, in no event shall the aggregate final liquidated damages payable by the Builder to the Buyer in respect of such delay exceeds the sum of |
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[**] [Confidential Treatment] | |||
(b) | if the Builder shall have given the Buyer more than ninety (90) days and less than or equal to one hundred and eighty two (182) days notice of the delay in delivery prior to the Delivery Date, in no event shall the aggregate final liquidated damages payable by the Builder to the Buyer in respect of such delay exceeds the sum of [**] [Confidential Treatment] | ||
(c) | if the Builder shall have given the Buyer less than or equal to ninety (90) days notice of the delay in delivery prior to the Delivery Date, in no event shall the aggregate final liquidated damages payable by the Builder to the Buyer in respect of such delay exceeds the sum of [**] [Confidential Treatment]; |
(ii) | may also claim from the Builder the aggregate of (a) all payments previously made by the Buyer to the Builder under this Contract on account of the Contract Price together with interest thereon at the Relevant Rate calculated from the date upon which the Builder received each such payment to the date on which the refund is received by the Buyer, (b) the return, free of all encumbrances whatsoever, of any Buyers Supplies that have not been built into or installed on or in the Ship or which may be removed from the Ship, the Shipyard or other place(s) where they are stored and the Buyers Supply Costs for all other such Buyers Supplies that cannot be returned to the Buyer, and (c) all other amounts payable by the Builder to the Buyer under the express provisions of this Contract together with interest thereon at the Relevant Rate from the respective due dates until the date of actual payment of each such amount; and | ||
(iii) | if the Buyers right to terminate the Builders engagement under this Contract (whether under Articles 4 and/or 9 or otherwise) becomes exercisable as a result of any gross negligence or wilful misconduct on the part of the Builder the Buyer shall, in addition to the payments referred to in sub-clauses 2.3(i) and (ii), be entitled to claim from the Builder, as agreed liquidated damages for loss of this Contract and not as a penalty, an amount equivalent to [**] [Confidential Treatment]). |
3. | TERMINATION BY EITHER PARTY | |
The Builders receipt of all payments to be made by the Buyer under the express provisions of Article 9 or, as the case may be, the Buyers receipt of all payments to be made by the Builder under the express provisions of Article 9 shall operate as a full and final settlement and discharge of all obligations and liabilities of the relevant party to the other under this Contract save for any obligations and liabilities of either party in respect of any costs payable in connection with any references or proceedings under Article 13. |
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1. | REPRESENTATIONS, WARRANTIES AND COVENANTS | |
1.1 | Each party acknowledges that the other has entered into this Contract in full reliance on the representations set out in this Clause 1 and each party (in either case, the warrantor ) warrants that such representations are in all respects true, accurate and not misleading in any respect. | |
1.2 | The Warrantor represents and warrants to the other party that: |
(i) | all acts, conditions and things required to be done, fulfilled and performed in order (a) to enable it lawfully to enter into, exercise its rights under and perform and comply with the obligations expressed to be assumed by it in this Contract and (b) to ensure that the obligations expressed to be assumed by it in this Contract are legal, valid and binding have been done, fulfilled and performed; and | ||
(ii) | no legal proceedings have been started or (to the best of the warrantors knowledge and belief) threatened which might have a material adverse effect on the warrantors ability to perform its obligations under this Contract. |
1.3 | The Builder further represents and warrants to the Buyer: |
(i) | that neither the execution of this Contract nor the exercise by the Builder of its rights and performance of its obligations under this Contract will result in any breach of any French or European Union law, regulation, rule, directive or treaty; | ||
(ii) | that it shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws, regulations, rules, directives and treaties of France and the European Union to enable it lawfully to enter into and perform its obligations under this Contract. |
1.4 | The Buyer further represents and warrants to the Builder: |
(i) | that neither the execution of this Contract nor the exercise by the Buyer of its rights and performance of its obligations under this Contract will result in any breach of any law, regulation, rule, directive or treaty applicable to the Buyer or any of the protected parties; and |
(ii) | that it shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws, regulations, rules, directives and treaties of Bermuda to enable it lawfully to enter into and perform its obligations under this Contract. |
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2. | EXCLUSION OF LIABILITIES | |
2.1 | The Builder shall not be liable to the Buyer, any other protected parties or any of its or their respective representatives, agents or employees for personal injury, including death, during such time as they or any of them are on board the ship, at the Shipyard or within the premises of Subcontractors or suppliers of the Builder unless such injury, including death is caused by the gross negligence or wilful misconduct of the Builder or the representatives, agents or employees of the Builder. Nor shall the Builder be liable to the Buyer, any other protected parties or any of its or their respective representatives, agents or employees for damage to, or loss or destruction of property of the Buyer, the other protected parties or its or their representatives, agents or employees in France or elsewhere unless such damage, loss or destruction is caused by the gross negligence or wilful misconduct of the Builder or the representatives, agents or employees of the Builder. | |
2.2 | Neither the Buyer nor any other of the protected parties shall be liable to the Builder, its representatives, agents or employees for personal injury, including death, during such time as they or any of them are on board the ship, at the Shipyard or within the premises of Subcontractors or suppliers of the Builder unless such injury, including death is caused by the gross negligence or wilful misconduct of the Buyer, other protected parties or the representatives, agents or employees of the Buyer or other protected parties. Nor shall the Buyer or any other of the protected parties be liable to the Builder, its representatives, agents or employees for damage to, or loss or destruction of property of the Builder, its representatives, agents or employees in France or elsewhere unless such damage, loss or destruction is caused by the gross negligence or wilful misconduct of the Buyer, other protected parties or the representatives, agents or employees of the Buyer or other protected parties. |
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1. | PATENTS, TRADE MARKS AND COPYRIGHTS | |
1.1 | The Builder shall procure all such approvals and licenses, and pay all such royalties, licence fees or other similar charges, on or in connection with: |
(i) | the Ship; | ||
(ii) | any Parts (other than Buyers Supplies) installed or incorporated in, stowed on or otherwise delivered with the Ship; and | ||
(iii) | any part of the Work, |
as may be necessary to ensure that the same are delivered to the Buyer and may be owned and operated by the Buyer (and its successors, assignees and counterparties) without infringement of any patent, patent right, copyright, trademark, trade secret or other intellectual property right. | ||
1.2 | The Builder shall indemnify fully, hold harmless and defend the Buyer and the other protected parties from and against all actions, claims, costs, liabilities and direct losses (subject to Article 14, Clause 14) that any of them may suffer or incur as a result of any actual or alleged infringement of any patents, patent rights, copyrights, trademarks, trade secrets or other intellectual property rights of any kind or nature on or in connection with the Ship, the Parts (other than Buyers Supplies) or any part of the Work or the ownership or the proper use thereof by the Buyer provided that this indemnity shall not apply to any such infringement if the management of the Buyer or the management of any other protected party knew of the relevant infringement (at any time between the Effective Date and the date of actual delivery of the Ship) but failed to notify the Builder. | |
1.3 | If by reason of any claim for which the Builder is responsible under this Clause 1: |
(i) | the Ship or any Part (other than Buyers Supplies) shall be held to constitute an infringement of any patent, patent right, copyright, trademark, trade secret or other intellectual property right; or | ||
(ii) | the Buyers free use and possession or quiet enjoyment of the Ship or any such Part shall be in any manner or to any extent disturbed, interfered with, limited, restricted or restrained (whether by reason of an actual or threatened arrest, detention or claim or as a result of any other encumbrance or for any other reasons whatsoever), |
1.4 | The Buyer shall indemnify fully, hold harmless and defend the Builder from and against all actions, claims, costs, liabilities and direct losses (subject to the exclusions referred to in Article 14, Clause 14) that that it may suffer or incur as a result of any actual or |
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alleged infringement of any patents, patent rights, copyrights, trademarks, trade secrets or other intellectual property rights of any kind or nature on or in connection with any Buyers Supplies, plans, designs and engineering and design data supplied by the Buyer to the Builder under or in connection with this Contract provided that this indemnity shall not apply to any such infringement if the management of the Builder knew of the relevant infringement (at any time between the Effective Date and the date of actual delivery of the Ship) but failed to notify the Buyer. | ||
2. | RIGHTS TO ENGINEERING AND DESIGN DATA | |
2.1 | All plans, designs and engineering and design data supplied by the Buyer to the Builder which are the property of the Buyer shall remain the property of the Buyer, and such plans, designs and engineering and design data may be used by the Builder only as permitted by this Clause 2. | |
2.2 | All plans, designs and engineering and design data supplied by the Builder to the Buyer which are the property of the Builder shall remain the property of the Builder, and such plans, designs and engineering and design data may be used by the Buyer only as permitted by this Clause 2. | |
2.3 | The Builder hereby grants to the Buyer and the other members from time to time of the Buyers Group an irrevocable, non-exclusive, perpetual, royalty-free, worldwide license to use the plans, designs, and engineering and design data referred to in Clause 2.2 in connection with the operation, maintenance, modification, redesign, refurbishment, repair, sale or other use of the Ship after delivery and such licence to use may be transferred to any charterer or other operator, to any manager or to any buyer of the Ship for such purposes without the need to seek or obtain any consent from the Builder, its successors or assigns. | |
2.4 | Each party shall take all reasonable precautions to maintain in confidence, and will not use or permit the use of except as may be necessary for the purposes of the Work or as otherwise permitted by the express provisions of this Clause 2 any of the designs, plans and engineering and design data owned by the other party. | |
2.5 | Nothing contained in this Contract shall be construed as transferring any patent, patent right, copyright, trademark, trade secret or other intellectual property right created or used in the performance of this Contract, all of which are hereby expressly reserved to the true and lawful owners thereof. |
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1. | TAXES AND CONTRACT EXPENSES | |
1.1 | The Builder shall be solely responsible for and shall pay or cause to be paid, without recourse to the Buyer or any member of the Buyers Group, all taxes of any kind whatsoever that are imposed, determined or assessed in any of the following jurisdictions (the relevant jurisdictions ) France or (if different) the country of the Shipyard or the country of any Subcontractor, in connection with: (i) the making, execution and performance of this Contract by the Builder; (ii) the construction, sale, delivery and export of the Ship in and from any of the relevant jurisdictions; (iii) the manufacture in, and importation and exportation of any Parts (other than Buyers Supplies) into or out of, any of the relevant jurisdictions; and (iv) the receipt of the payment of the Contract Price in France, and the Builder shall indemnify fully, hold harmless and defend the Buyer and other protected parties from and against any actions, claims, costs, liabilities and losses which any of them may suffer or incur in relation to any such taxes. | |
1.2 | The Buyer shall be solely responsible for and shall pay or cause to be paid, without recourse to the Builder, all taxes of any kind whatsoever that are imposed, determined or assessed in connection with: (i) the making, execution and performance of this Contract by the Buyer (other than any taxes imposed, determined or assessed in any of the relevant jurisdictions for which the Builder is responsible); (ii) the importation into any of the relevant jurisdictions of any Buyers Supplies delivered by the Buyer to the Builder or any Subcontractor; (iii) the importation of the Ship or any Parts into the country of the Buyer; and (iv) the residence or activities of any of the Buyers representatives in France, and the Buyer shall indemnify fully, hold harmless and defend the Builder from and against any from and against any actions, claims, costs, liabilities and losses which the Builder may suffer or incur in relation to any such taxes. | |
1.3 | Each party shall bear and pay all costs and expenses incurred by it in connection with the negotiation, preparation and execution of this Contract. |
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1. | TECHNICAL DISPUTES | |
1.1 | Except where a Dispute of a technical nature is determined by the Classification Society under Clause 4.2 in Article 1 or, as appropriate, by a Regulatory Authority under Clause 4.4 in Article 1, any Dispute of a technical nature giving rise to issues purely of fact (including, without limitation, any difference of opinion relating to the costs and time effects of any modifications proposed under Article 3 or to questions as to the existence, degree or extent of any alleged non-compliance of the Ship or any Part to the Contract, the Plans, the Specification, or the Class or Regulatory Rules) shall be referred to the Head Office of the Classification Society for its final decision provided that if the Head Office of the Classification Society declines to accept any such referral, or if either party reasonably considers that it is not appropriate to refer the Dispute in question to the Head Office of the Classification Society, with the agreement of both parties the Dispute shall be referred to a mutually acceptable technical expert for his final decision. | |
1.2 | The procedure applicable to the resolution of any Dispute of a technical nature (whether by the Classification Society or by a mutually agreed technical expert) shall be as follows: |
(i) | the person or body to whom the Dispute is referred (the Expert , which term shall also apply to any substitute appointed by mutual agreement of the parties) shall be requested to make a final decision within 21 (twenty one) Working Days after it has accepted the appointment; | ||
(ii) | within 10 (ten) Working Days after the Expert has confirmed to both parties that it has accepted the appointment, each party will send to the Expert (and simultaneously to the other party), by email, telefax or registered courier, its submissions and supporting evidence in relation to the Dispute ; | ||
(iii) | if a party fails to submit its submissions and supporting evidence within the time limit laid down in paragraph (ii), it shall be deemed to have admitted the correctness of the other partys submissions; | ||
(iv) | the Expert shall act as an expert and not as an arbitrator; | ||
(v) | the decision of the Expert shall be final and binding on both parties (except in the case of fraud, bad faith or manifest error or unless otherwise agreed in writing by the parties); and | ||
(vi) | the parties shall bear the Experts costs equally. |
1.3 | If within 10 (ten) Working Days after receipt by a party of a notice of a Dispute from the other party: |
(i) | the Head Office of the Classification Society has failed to accept a referral pursuant to Clause 1.1; or |
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(ii) | a party reasonably considers that it is not appropriate to refer any Dispute of a technical nature to the Head Office of the Classification Society or to a technical expert; or | ||
(iii) | the parties have failed to agree upon the identity of a mutually acceptable technical expert and obtain written acceptance of its appointment, |
the Dispute shall be determined in accordance with Clause 2. | ||
2. | JURISDICTION | |
2.1 | Except where a Dispute is determined under Clause 1.1, the English courts shall have exclusive jurisdiction to settle and determine all Disputes. | |
2.2 | Each party agrees that the English courts are the most appropriate and convenient courts to settle and determine Disputes and that accordingly no party will argue to the contrary; and each party hereby irrevocably submits itself to the jurisdiction of the English courts for the purposes of this Contract. | |
2.3 | A judgment relating to this Contract that is given or enforceable by the English courts may be enforced without review (subject to mandatory law) in any other jurisdiction and each party waives all of its rights to apply for or require any such review. | |
2.4 | Subject to Clause 2.6 in Article 8, no Dispute shall entitle the Builder to cease or suspend any part of the Work or to withhold delivery of the Ship, nor shall any Dispute entitle the Buyer to withhold the payment of any part of the Contract Price due under any of Clauses 2.1(i), (ii), (iii) or (iv) in Article 8 beyond the relevant due date for payment provided that nothing in this provision shall prejudice any right which: |
(i) | the Builder may have to retain possession of the Ship on account of non-payment of the Contract Price; or | ||
(ii) | the Buyer may have to dispute the due date for payment of any part of the Contract Price under Clause 2.1(v) in Article 8. |
2.5 | For the avoidance of doubt, if any Dispute arises before delivery of the Ship and is referred for determination under any of the express provisions of Clauses 1 or 2 hereof, the Builder shall not be entitled to dispose of the Ship pending the final determination of such Dispute. | |
3. | GOVERNING LAW | |
3.1 | This Contract is governed by and shall be construed in accordance with English law. | |
3.2 | Each party irrevocably agrees before the Effective Date to appoint and thereafter to maintain Clifford Chance Secretaries Limited ( CCSL ) as agent for service of process in relation to any proceedings before the English courts in connection with this Contract and all related agreements, securities and other documents including (without limitation) the Builders Performance Guarantee, the Buyers Guarantee and the Option Agreement. | |
3.3 | Without prejudice to any other mode of service allowed under any relevant law, service of any proceedings or process or judgment issued out of, or made or granted by, the |
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English courts may be served by being delivered to the last known address in London of CCSL or to the relevant party itself at the address for such party set out in Clause 4. | ||
3.4 | The Builder (for itself, its successors and assignees) irrevocably and unconditionally agrees that, notwithstanding the appointment of CCSL referred to in Clause 3.2 above, Clifford Chance LLP may act as legal advisors and attorneys of the Buyer and other members of the Buyers Group for all purposes whatsoever under or in connection with this Contract and all related agreements, securities and other documents including, without limitation, for the purposes of any legal proceedings arising out of or in connection with this Contract or such agreements, securities and other documents. | |
4. | NOTICES | |
4.1 | Any notice or other communication in relation to material matters in connection with this Contract shall be in writing in the English language and shall be given to the addressee at the address set out below or sent by telefax to the telefax number given below, marked for the attention of the relevant individual listed in the Attention lines set out below provided that all notices and communications relating to technical matters (including, without limitation, those concerning the approval of Plans and tests) shall be given to the Supervisor at the address set out in paragraph (ii) below or sent by telefax to the telefax number specified in paragraph (ii) below. |
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Saint-Nazaire | |||
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Cedex | |||
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France | |||
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Telefax: | +33 (0) 2 51 10 91 61 | ||
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Attention: | Chief Executive Officer | ||
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with copy to: | |||
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Telefax: | +33 (0) 2 51 10 99 94 | ||
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Attention: | Contract Director | ||
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And with a copy to: | |||
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Telefax: | +358 10 670 24 04 | ||
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Attention: | Chief Legal Counsel |
or to such other person, address or telefax number as either party may (by not less than five (5) Working Days notice in writing) specify to the other. | ||
4.2 | In the absence of evidence of earlier receipt, any notice or other communication shall be deemed to have been duly given: |
(i) | if correctly addressed and marked for the attention of the appropriate individual and delivered personally, when left at the appropriate address of the addressee; | ||
(ii) | if correctly addressed and marked for the attention of the appropriate individual and sent by pre-paid registered mail (or registered airmail if international) or courier, upon acknowledgement of receipt by return telefax; and | ||
(iii) | if correctly addressed and marked for the attention of the appropriate individual and sent by telefax to the correct number, upon acknowledgement of receipt by return telefax. |
4.3 | Communications in relation to matters other than those referred to in Clause 4.1 may be given by email. |
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1. | COMPUTATION OF TIME | |
1.1 | Except as otherwise provided in this Contract, all periods of time shall be computed by including Saturdays, Sundays and holidays except that if any period terminates on: |
(i) | any day which is not a Working Day in London or Paris (in the case of periods applicable to action by the Buyer); or | ||
(ii) | any day which is not a Working Day in Paris (in the case of periods applicable to action by the Builder), |
such period shall be deemed to be extended to the next following Working Day in such place. | ||
2. | ASSIGNMENTS | |
2.1 | The Buyer may: |
(i) | grant to its financiers of the Ship, or the other financiers of the Buyers Group, assignments of (or other security interests in) this Contract, the Insurances (in respect of Buyers Supplies), and the Refund Guarantees and any other securities that may be issued to the Buyer under and in connection with this Contract; | ||
(ii) | assign, novate or transfer this Contract to any member of the Buyers Group or to any other person connected with the financing of the Ship (with the prior approval of the Builder, which is not to be unreasonably withheld); and | ||
(iii) | assign its post-delivery rights under this Contract to any purchaser, lessee or bareboat charterer of the Ship, |
provided that the Buyers Guarantee shall remain in full force and effect or, if legally necessary to replicate the security intended to be conferred by such guarantee, shall be replaced with another guarantee acceptable to the Builder (such acceptance not to be unreasonably withheld) notwithstanding any such assignment, novation or transfer. | ||
2.2 | As and when so requested by the Buyer, the Builder will provide the Buyers financiers and permitted assignees with all such information and documentation as they may reasonably request without depriving the Builder of its rights and interest under this Contract. | |
2.3 | The Builder may assign its rights under this Contract and its interest in the Insurances to its financiers for the Builders pre-delivery construction financing of the Ship and the Refund Guarantors. Otherwise, the Builder shall not assign or novate or transfer, or purport to assign or novate or transfer, any of its rights or obligations under this Contract. | |
3. | PARTIAL ILLEGALITY | |
3.1 | If any provision of this Contract or the application thereof to any person or in any circumstances shall to any extent be illegal, invalid or unenforceable, such illegality, |
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invalidity or unenforceability shall not prejudice the effectiveness of the remainder of this Contract or the application of such provision to other persons or in other circumstances and each other provision of this Contract shall be legal, valid and enforceable to the fullest extent permitted by law. | ||
4. | CONFIDENTIALITY | |
4.1 | After the date of this Contract, the parties will agree the terms and publication date(s) of press announcements in relation to the construction of the Ship. | |
4.2 | Save as provided in Clause 4.1, each party agrees that at all times before or after delivery of the Ship it shall hold this Contract, the Plans and the Specifications in strict confidence and shall not disclose (or allow to be disclosed) to any third party any information or documentation in relation to this Contract provided that : |
(i) | each party may, with the prior written consent of the other, disclose to any third party information relating to the matters referred to in this Clause 4.2; | ||
(ii) | each party shall be entitled to disclose information about the Contract strictly on a need to know basis and then only to such extent as shall be reasonably necessary to enable each recipient to carry out its work in relation to the Contract to its employees and other representatives, and also to its shareholders, bankers, auditors and legal advisors; and | ||
(iii) | each party shall be entitled to disclose information about the Contract to such extent as may from time to time be required by law or the rules or regulations of any applicable stock exchange or similar body. |
5. | AMENDMENTS | |
5.1 | No amendment, modification, supplement or other variation of this Contract, the Plans or the Specification shall be of any effect unless made in writing and signed by the Builder and the Buyer or their respective duly authorised representatives. | |
6. | NO WAIVER | |
6.1 | No failure or delay on the part of either party in exercising any right, power or remedy under this Contract shall operate as a waiver thereof or a waiver of any other rights, powers or remedies nor shall any single or partial exercise of any such right power or remedy preclude any other or further exercise of any such right, power or remedy or the exercise any other right, power or remedy. | |
6.2 | The respective rights, powers and remedies conferred on the parties by this Contract are cumulative and (save where the contrary is expressly stated) are in addition to (and not exclusive of) any rights, powers and remedies provided by law. | |
7. | CONSENTS | |
7.1 | Subject to Clause 1.6 in Article 2, where any matter: |
(i) | requires an instruction from the Buyer, a waiver by the Buyer or the approval, authority or consent of the Buyer any such instruction, waiver, approval, |
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authority or consent shall not be deemed to have been given or to any extent effective unless it is given in writing by a duly authorised representative of the Buyer; and | |||
(ii) | is required to be acceptable or satisfactory to the Buyer, the Buyer shall not be deemed to have accepted, or to be satisfied with such matter, unless its acceptance or satisfaction is communicated in writing to the Builder by a duly authorised representative of the Buyer. |
7.2 | Subject to the other express provisions of this Contract, where any matter: |
(i) | requires an instruction from the Builder, a waiver by the Builder or the approval, authority or consent of the Builder any such instruction, waiver, approval, authority or consent shall not be deemed to have been given or to any extent effective unless it is given in writing by a duly authorised representative of the Builder; and | ||
(ii) | is required to be acceptable or satisfactory to the Builder, the Builder shall not be deemed to have accepted, or to be satisfied with such matter, unless its acceptance or satisfaction is communicated in writing to the Buyer by a duly authorised representative of the Builder. |
(i) | the Buyer shall have confirmed by written notice to the Builder that it has obtained binding written commitments (in terms reasonably satisfactory to the Buyer) for the financing arrangements that will be required to enable the Buyer to fund all Contract Price payments in accordance with Article 8; |
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(ii) | the Buyer shall have confirmed by written notice to the Builder that it has approved (a) the table referred to in Article 3, Clause 1.2, and (b) the final version of the Specification section relating to the public spaces in the Ship. | ||
(iii) | Star Cruises Limited shall have received the approval of its shareholders for the transactions contemplated by this Contract and shall have complied with the requirements of the applicable rules of the Stock Exchange of Hong Kong Limited and of the Singapore Exchange Securities Trading Limited; | ||
(iv) | the formats of each of the AOM form, the Refund Guarantee, the Builders Performance Guarantee and the Buyers Performance Guarantee shall have been finally agreed by the parties; | ||
(v) | the Buyers Performance Guarantee shall have been delivered to the Builder; | ||
(vi) | the Builders Performance Guarantee shall have been delivered to the Buyer; and | ||
(vii) | the Option Agreement shall have been signed by the Builder and the Buyers Guarantor. |
11.2 | The Parties intend that the conditions referred to in Clause 11.1 (i), (ii), (iv), (v), (vi) and (vii) shall be satisfied by 11 September 2006 and that the conditions referred to in Clause 11.1 (iii) shall be satisfied by 31 October 2006. If this Contract has not come into effect by 4pm (Paris time) on 31 October 2006 either party may, by written notice given to the other within ten (10) days thereafter, cancel this Contract. | |
11.3 | In the event of the exercise by either party of its right to cancel this Contract under Clause 11.2, this Contract shall, with effect from such cancellation, be null and void without any liability whatsoever on the part of either party. | |
11.4 | Notwithstanding any provision to the contrary in this Contract, the Buyer shall not be obliged to make any payment to the Builder hereunder until such time as all of the conditions set out in Clause 11.1 have been fulfilled or expressly waived in writing by both parties. | |
12. | PROTECTED PARTIES | |
12.1 | Any of the protected parties may enforce only the provisions of this Contract that are expressed to confer any rights on them, subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999. | |
12.2 | The Builder and the Buyer may at any time, by agreement between them, rescind this Contract or vary it without the consent of the protected parties. | |
12.3 | If any protected party becomes entitled to bring a claim against the Builder under or in respect of this Contract, the Buyer shall bring such claim against the Builder on behalf of the relevant protected party and all communications, notices and proceedings shall be channelled through the Buyer. |
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12.4 | If any claim is made against the Builder by the Buyer on behalf of a protected party under Clause 12.3, the Builder shall have available to it by way of defence only such matters as would have been available to it by way of defence if the relevant protected party had been a party to this Contract. For the avoidance of doubt, this means that in respect of any claim by the Buyer on behalf of a protected party the Builder shall be entitled to raise any defence that the Builder would have been entitled to raise if the relevant claim had been brought by the Buyer for itself. | |
12.5 | Save as provided above the operation of the Contracts (Rights of Third Parties) Act 1999 is hereby excluded. | |
13. | RELATIONSHIP OF PARTIES, PREVIOUS NEGOTIATIONS | |
13.1 | The Contract does not create any partnership, joint venture or other joint relationship between the Builder or the Buyer. | |
13.2 | This Contract supersedes all prior negotiations, representations, undertakings and agreements between the parties in relation to the subject matter of this Contract. | |
14. | EXCLUSIONS | |
14.1 | Subject to the obligations and liabilities of either party to pay the liquidated damages and other compensation amounts expressly provided for in this Contract, each party agrees that neither party shall be liable to the other under or in connection with this Contract for any form of consequential, exemplary, incidental, indirect or special losses and/or damages of any nature whatsoever, howsoever caused and whensoever arising. | |
14.2 | Save as otherwise expressly provided in this Contract, all implied terms and conditions are hereby excluded. | |
14.3 | Nothing in this Contract shall operate to exclude, limit or restrict any liability arising as a result of fraud, or death or personal injury resulting from gross negligence or wilful misconduct. | |
15. | FAIR DEALING AND BUSINESS STANDARDS | |
15.1 | Each party agrees: to use all reasonable efforts to make timely decisions in a speedy and effective way; to deal fairly with each other; and at all times to act in good faith. In this context, good faith includes, without limiting the duty of each party to co-operate with the other, a duty of honesty to the other party and a duty not to intentionally mislead the other party. | |
15.2 | Each party, in performing its obligations under the Contract, shall maintain appropriate business standards, procedures, precautions and controls, including those necessary to avoid any real or apparent impropriety or adverse impact on the interests of the other party. Each party shall implement (and shall ensure that its employees and other representatives comply with) a policy which prohibits the giving or receiving of any inappropriate favours, gifts, entertainment, payments, loans or other consideration of any kind directly or indirectly connected with the Contract or the Work or any other activities that might influence individuals to act contrary to the best interests of their principal or applicable law. |
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15.3 | Each party warrants and represents that all financial settlements, reports and billings rendered to the other party under or in connection with the Contract shall properly reflect the facts of all activities and transactions handled for the other partys account and may be relied upon as being complete and accurate in any further recording or reporting made by the such party or any other member of the corporate group to which such party belongs. | |
15.4 | Save for the commission payable by the Builder to brokers whose identity has previously been disclosed in writing by the Builder to the Buyer, no commission of any kind whatsoever is or will be payable (whether directly or indirectly) by or to the Builder in relation to or in connection with the Contract or any of the business transactions described in or contemplated by the Contract. Any breach of this Clause by the Builder may be treated by the Buyer as a material breach of the Builders obligations for the purposes of Article 9, Clause 2.1 (iii). | |
16. | COST SAVINGS | |
The Builder and the Buyer will co-operate and Work closely together on an open-book basis in order to reduce costs and generate savings. | ||
17. | PRIORITY OF CONTRACT, PLANS AND SPECIFICATION | |
17.1 | This Contract, the Plans, and the Specification are intended to complement and supplement one another. All general language or requirements embodied in the Specification are intended to amplify, explain and implement the requirements of this Contract. The Specification and the Plans are also intended to explain each other, and anything shown in the Plans but not stipulated in the Specification or stipulated in the Specification and not shown in the Plans shall be deemed and considered as if embodied in both. | |
17.2 | If there is any conflict between any provisions of the following documents, priority between them shall be determined as follows: |
(i) | this Contract and the Specification or Plans, the former shall prevail; | ||
(ii) | the Specification and the Plans, the former shall prevail; | ||
(iii) | the GA Plan and other Plans, the former shall prevail; and | ||
(iv) | one or more Plans (other than the GA Plan), the latest in time shall prevail. |
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AKER FRANCE S.A | PROJECT: | AOM No: | ||
St.Nazaire
|
Calculation +/- costs | Date: | ||
|
||||
Subject:
|
||||
|
||||
Reference:
|
||||
|
||||
Description:
|
Calculation:
|
||||||
Sum ED + ID
|
| |||||
Builders Margin ( 8 % ):
|
| |||||
Sum ED + ID + Builders Margin:
|
| |||||
Labour Cost:
|
Hours x | /hour | | |||
Design Cost:
|
Hours x | /hour | | |||
Sum Fabrication costs:
|
| |||||
Interest: % Interest days: days Interest cost:
|
| |||||
(Note: Interest is paid from the day the AOM related work is completed and handed over) |
Calculation Price:
|
||||||||||
Quotation to Owner:
|
Yes O | Date: | No | O | ||||||
Negotiated with Owner:
|
Yes O | Date: | No | O | ||||||
Final Price:
|
Name:
|
Phone: | Department: | ||
:
|
: | : |
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To:
|
[insert name of Buyer] | |
|
||
Date:
|
[ ] |
1. | We refer to the shipbuilding contract dated as of [ ] 2006 (as amended or supplemented at any time, the Contract ) and made between [ ] (the Buyer ) and AKER YARDS SA (the Builder ) in relation to the construction of the Builders Hull [ ] (the Ship ). Terms used in this Guarantee shall bear the same meaning as in the Contract. Under the Contract, the Contract Price is to be paid in 5 (five) instalments and the Buyers obligation to pay each of the 4 (four) pre-delivery instalments of the Contract Price is conditional upon (amongst other things) the Buyer receiving an irrevocable refund guarantee from a first class bank, insurance company or other financial institution reasonably acceptable to the Buyer securing the refund of the instalment together with interest thereon at the Relevant Rate. | |
2. | In consideration of the Buyer agreeing to pay the sum of EUR [ ] corresponding to the [first] / [second] / [third] / [fourth] instalment (the Instalment ) of the Contract Price payable under Article 8, Clause 2.1 of the Contract, and of the Buyer agreeing to accept this Guarantee under Article 8, Clause 2.3 of the Contract as security for the refund of the Instalment, at the request of the Builder we, [ ] hereby unconditionally and irrevocably: (i) guarantee to the Buyer to refund the Instalment to the Buyer (less the amount received by the Buyer from the Builder under Article 1, Clause 6.8 of the Contract) and to pay interest thereon at the Relevant Rate from the date of the Builders receipt of the Instalment to the date of the Buyers receipt of the refund, subject to an overall limit of EUR [ ] [ corresponding to the Instalment plus interest equivalent to a % of the Instalment amount to be approved by the Buyer ] in respect of such Instalment and interest, and without prejudice to the Buyers right to claim and recover interest in excess of this limit from the Builder or its other guarantors, against the Buyers simple written demand (a) specifying the amount claimed by the Buyer in respect of the Instalment together with interest thereon at the Relevant Rate, and (b) specifying the account to which the amount demanded is to be paid; and (ii) undertake to the Buyer that (a) payment will be made by us forthwith, subject to a fifteen (15) running day notification period under paragraph 3 below, upon our receipt of such simple written demand, without any counterclaim, deductions, set-off, withholdings or any objection whatsoever, and (b) if we are required by law to make any deduction or withholding from any payment to the Buyer under this Guarantee, our payment to the Buyer will be increased by such amount as may be necessary to ensure that, after all of the required deductions and withholdings have been made, the Buyer receives a payment equal to the amount it would have received had no such deductions or withholdings been made. |
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3. | Notwithstanding paragraph 2 above, if, within fifteen (15) running days following our receipt of a written demand from the Buyer, the Builder has (i) confirmed to us in writing that the Builder is disputing the Buyers entitlement to make a claim under this Guarantee and (ii) delivered to us a copy of a written notice served on the Buyer stating the grounds upon which the Builder is disputing the Buyers entitlement to make a claim under this Guarantee, we shall not effect payment under this Guarantee pending settlement of the dispute between the parties or determination of the dispute in accordance with the Contract. If the Builder subsequently accepts all or any part of the Buyers claim, or if the Buyer obtains a final order from the English courts (meaning a judgment or court order in respect of which there is no right of appeal or in respect of which the time limit for submitting an application to appeal has expired without such application having been made by either party to the Contract) adjudging that all or any part of the claim is payable to the Buyer, we will pay the relevant amount to the Buyer (together with interest thereon as provided in paragraph 2 above) upon our receipt of a certified true copy of a settlement agreement signed on behalf of the Builder and the Buyer or (as the case may be) upon our receipt of a certified true copy of the relevant court order. | |
4. | This Guarantee shall become effective upon the Builders receipt of the Instalment. Save in respect of any demand made hereunder before the termination or expiry of this Guarantee, this Guarantee shall terminate upon the first to occur of (i) the Buyers acceptance of the Ship in accordance with the Contract, (ii) the date when we have received a written notice from the Buyer stating that it has (a) received, from another guarantor acceptable to the Buyer, a substitute guarantee securing the refund of the Instalment which is in form and substance satisfactory to the Buyer or (b) received a refund of the Instalment together with interest thereon as provided for in paragraph 2 above, (iii) our payment to you of the Instalment together with interest thereon as provided for in paragraph 2 above, (iii) the valid and lawful termination of the Contract by the Builder pursuant to the terms and conditions thereof, and (iv) the date falling [365 (three hundred and sixty five)] days after the Delivery Date provided that if either party commences legal proceedings in the English courts pursuant to the Contract before the termination or expiry of this Guarantee or within 45 (forty five) days after termination of the Contract, this Guarantee shall remain in full force until the date falling 45 (forty five) days after the date of the final order in such proceedings. | |
5. | Our obligations under this Guarantee are those of a sole primary obligor (as and for our own debt and independent from any obligations of the Builder) and not merely as surety, and we agree that the Buyer is not obliged to make any prior demand of the Builder under the Contract or to seek to enforce any remedies against the Builder before making a claim under this Guarantee. | |
6. | Our obligations under this Guarantee shall not be in any respect discharged, impaired or otherwise affected by reason of any events or circumstances whatsoever including without limitation (i) any invalidity, irregularity or unenforceability of any of the Builders obligations under or in connection with the Contract, (ii) the granting to the Builder of any time, waiver, consent, indulgence or other forbearance in relation to the Contract, (iii) any bankruptcy, insolvency or similar proceedings related to any party to the Contract, (iv) any amendments or supplements to the Contract, or (v) any other events or circumstances that might otherwise constitute a legal or equitable discharge of |
- 71 -
or defence to a surety or guarantor under applicable law, and we hereby irrevocably and unconditionally waive any and all defences at law or in equity that may be available to us by reason of any such events or circumstances. | ||
7. | This Guarantee shall be in addition to any other security granted by the Builder in favour of the Buyer under the Contract, and shall not be affected by any action taken by the Buyer under any such other security. | |
8. | This Guarantee may be assigned by the Buyer to any of the banks and financial institutions from time to time providing the Buyer with financial support for its payment obligations under or in connection with the Contract, and to any other permitted assignees of the Buyers rights under the Contract, provided that written notice of any such assignment shall be given to us promptly thereafter. | |
9. | We unconditionally and irrevocably (i) agree that this Guarantee shall be governed by and construed in accordance with English law, (ii) agree that the English courts shall have exclusive jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, that may arise out of or in connection with this Guarantee, and (iii) submit to the jurisdiction of the English courts for the purposes of any proceedings under or in connection with this Guarantee. | |
10. | All correspondence, claims and demands under or in connection with this Guarantee shall be marked for the attention of [ insert name ] and delivered to us at [ insert address ]. Any legal process issued out of the English courts may be served on us by being delivered to our agent for service of process in London, [ insert name ] at [ insert London address ]. |
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To:
|
[Buyer] | |
|
||
Date:
|
[ ] |
- 73 -
- 74 -
Yours faithfully
|
||||
|
||||
For and on behalf of AKER YARDS ASA |
||||
|
||||
|
||||
|
|
|||
|
[ name and position ] |
- 75 -
- 76 -
- 77 -
Yours faithfully
|
||||
|
||||
For and on behalf of NCL Corporation Ltd |
||||
|
||||
|
||||
|
||||
|
|
|||
|
[ name and position ] |
- 78 -
1. | DEFINITION OF CERTAIN TERMS | |
1.1 | In this Contract: | |
AOM has the meaning given in Article 3, Clause 1.3; | ||
Builders Account means the euro denominated account with IBAN number: [**] [Confidential Treatment] or as further modified by notice given by the Builder to the Buyer, and held by the Builders Bank at its office in Paris; | ||
Builders Bank means Société Générale, Agence Opéra or as further modified by notice given by the Builder to the Buyer; | ||
Buyers Group means (i) NCL Corporation Ltd, and its subsidiaries and (ii) all other associated or affiliated companies; | ||
Buyers Performance Guarantee means the guarantee to be given by Buyers Guarantor in the form set out in Schedule 5; | ||
Buyers Guarantor means NCL Corporation Ltd., a company incorporated in Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton, HM12, Bermuda; | ||
Builders Performance Guarantee means the guarantee to be given by Aker Yards ASA in the form set out in Schedule 4; | ||
Buyers Supplies has the meaning given in Article 1, Clause 1.1(i)(b); | ||
Buyers Supply Costs means at any given time the aggregate of (i) the costs incurred by the Buyer in relation to the delivery and transportation to the Shipyard, Ship or relevant Subcontractor, and all related incidental costs including insurance up to the point of delivery, of all Buyers Supplies and (ii) the Buyers reasonably estimated costs of acquiring and obtaining delivery of replacements for such Supplies at such time; | ||
Class Rules has the meaning given in Article 1, Clause 4.1; | ||
Classification Society has the meaning given in Article 1, Clause 4.1; | ||
commission includes any advantage or benefit (whether monetary or not), brokerage, consideration, gift, gratuity, inducement, introduction fee, payment (other than any payment made or to be made in accordance with the express provisions of this Contract), promise, reward or success fee of any kind whatsoever payable to any broker, agent, intermediary or other person in relation to or in connection with the placing and/or performance of any activities connected with this Contract; | ||
Compensation Date means (i) the 7th (seventh) day from (and including) the Delivery Date or (ii) the 3rd (third) day from (and including) the Delivery Date if the Ship has not |
- 79 -
been delivered by the intended delivery date mentioned in the 15 (fifteen) days definite notice given by the Builder under Clause 1.1 in Article 7; | ||
Compulsory Acquisition means a requisition or other compulsory acquisition (including seizure, detention, confiscation or appropriation) by or on behalf of any government or governmental agency or by any persons acting or purporting to act on behalf of any government or governmental agency; | ||
Contract means this shipbuilding contract and (save in the context of Article 14, Clause 18) includes the Plans, the Specification and the schedules, each of which forms an integral part of this Contract; | ||
Contract Price means the fixed price for the Ship specified in Clause 1.1 of Article 8; | ||
Defects List has the meaning given in Article 6, Clause 1.15; | ||
Delivery Date means the fixed delivery date for the Ship specified in Clause 1.1 of Article 7, it being acknowledged and agreed by the parties that such date may be reset only in strict accordance with, and subject to, the express provisions of this Contract; | ||
Design Draft has the meaning given in Article 1, Clause 2.12(ii); | ||
Dispute means any dispute or difference whatsoever arising at any time out of or in connection with this Contract including a dispute regarding the existence, validity or termination of this Contract, and Disputes shall be construed accordingly; | ||
Effective Date has the meaning given in Article 14, Clause 11.1; | ||
encumbrance means (i) any claim or demand (whether in personam or in rem and including any arrest or other detention in connection with any claim) and any debt, and/or (ii) any mortgage, charge, pledge, maritime or possessory or other lien, assignment, hypothecation, trust arrangement, encumbrance, or other security interest securing any obligation of any person or any other type of preferential arrangement (including, without limitation, title transfer and retention arrangements) having a similar effect but does not include any permitted encumbrance; | ||
EUR and euro mean the lawful currency of France. | ||
EURIBOR means the percentage rate per annum for euro deposits determined by the Banking Federation for Europe for the relevant period displayed on the appropriate page of the Telerate or the Reuters screen from time to time or, if such display is not available at any time, as certified by the head office of the Builders Bank at Paris; | ||
Flag State has the meaning given in Article 7, Clause 1.8; | ||
GA Plan means the general arrangement plan [**] [Confidential Treatment], dated [ ] 2006 and initialled by the parties for the purposes of identification; | ||
Guaranteed Deadweight has the meaning given in Article 1, Clause 2.1(ii); |
- 80 -
Guaranteed Fuel Consumption or GFC has the meaning given in Article 1, Clause 2.1(vii); | ||
Guaranteed Service Speed or GSS has the meaning given in Article 1, Clause 2.1(vi); | ||
Insurances has the meaning given in Article 4, Clause 2.1; | ||
Manuals has the meaning given in Article 1, Clause 1.1(i)(c); | ||
Makers List has the meaning given in Article 1, Clause 5.3; | ||
Mortgage has the meaning given in Article 4, Clause 1.8 and Mortgages shall be construed accordingly. | ||
minor defect has the meaning given in Article 6, Clause 1.15; | ||
Option Agreement means an agreement to be made on mutually acceptable terms between the Builder and the Buyers Guarantor for the construction of one further passenger cruise ship; | ||
Parts has the meaning given in Article 1, Clause 1.1(i)(b); | ||
partial loss means any loss of or damage to the Ship (including Buyers Supplies and other Parts) which does not constitute a total loss and partial loss proceeds means any insurance proceeds paid and/or payable in respect of any partial loss; | ||
permitted encumbrance means any encumbrance (i) created by the Buyer or (ii) arising by operation of law in connection with claims against the Buyer by any person other than the Builder for which the Buyer would not be entitled to compensation or indemnification from the Builder under this Contract; | ||
Plans means the GA Plan, and the other plans and drawings described or referred to in the Specification; | ||
protected parties means (i) the Buyer and NCL (Bahamas) Ltd. ( NCLB ), and (ii) the respective agents, officers, employees, workmen, suppliers and other representatives of the Buyer and NCLB provided that , in the context of Article 12, Clause 1.1 protected parties means the Buyer and any other affected members of the Buyers Group; | ||
Protocol of Delivery and Acceptance has the meaning given in Article 7, Clause 1.3(i); | ||
Refund Guarantee has the meaning given in Article 8, Clause 2.3(ii); | ||
Refund Guarantor has the meaning given in Article 8, Clause 2.3(ii); | ||
Regulatory Authorities means the authorities, bodies and entities having regulatory responsibility and authority in respect of the Ship or specific areas or parts of the Ship, before or after delivery of the Ship, including those identified in Part G3 of the Specification; | ||
Regulatory Rules has the meaning given in Article 1, Clause 4.3; |
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Relevant Rate means the aggregate of (i) [**] [Confidential Treatment] and (ii) EURIBOR; | ||
remedy shall be construed (with reference to defects and deficiencies referred to in Articles 6 and 7) so as to mean and include correct, rectify, redesign, remedy, repair, replace or otherwise make good, and test to prove the efficacy of the relevant remedial Work, every defect and deficiency, and any other physical damage, for which the Builder is liable under Articles 6 and 7, and remedial shall be construed accordingly; | ||
Ship has the meaning given in Article 1, Clause 1.1(i)(a); | ||
Shipyard means the Builders shipyard at Saint-Nazaire, France; | ||
Signing Date means the date on which this Contract is signed by or on behalf of each party; | ||
Specification means Specification [**] [Confidential Treatment] dated [ ] 2006 and, unless the context otherwise requires, specified means stipulated in the Specification or in the Appendices; | ||
Subcontractor(s) shall include each of the Builders makers and suppliers and any other person, company or other entity to whom any part of the Work is subcontracted directly or indirectly by the Builder; | ||
tests means (i) the shop and dock inspections, measurements and tests, (ii) the sea trials, (iii) the other inspections and tests referred to in the Specification and the Plans, and (iv) all such other commissioning, tests, trials and inspections (or retests, retrials and reinspections) as may reasonably be required in order to demonstrate and confirm compliance of the Ship with the Contract, Plans and Specification and the full and final remedy of any defects; | ||
total loss means any actual, constructive, compromised or arranged or agreed total loss of the Ship (including Buyers Supplies or other Parts); | ||
Work means all of the Parts to be provided and all of the services, labour and other Work to be supplied and carried out by the Builder and its Subcontractors under and in connection with this Contract, as more particularly described in the Specification and the Plans; | ||
Working Day means any day, other than a Saturday or Sunday, on which banks are generally open for business in each of London and Paris; and | ||
2. | INTERPRETATION OF CERTAIN REFERENCES | |
2.1 | Save where the contrary is expressly stated, any reference in this Contract to: |
(i) | this Contract, the Specification, the Plans or any other agreements or documents shall be construed as a reference to this Contract, the Specification, the Plans or, as the case may be, such other agreements or documents as the same may have been, or may from time to time be, amended, modified, varied, novated or supplemented by agreement of the parties; |
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(ii) | an Article or the schedule shall be construed as a reference to an Article or the schedule of this Contract; | ||
(iii) | an award shall be construed as a reference to any award, decision, declaration, injunction, judgement, order or other relief; | ||
(iv) | a claim shall be construed as a reference to any action, claim, demand, proceeding, process or suit, whether in arbitration or court or otherwise; | ||
(v) | a clause shall be construed as a reference to a clause of the Article in which the reference appears; | ||
(vi) | a person shall be construed as a reference to any individual, firm, company, corporation, unincorporated body of persons, or any state or state agency, | ||
(vii) | a party to this Contract shall include a reference to such partys successors and permitted assigns; | ||
(viii) | a tax shall be construed as a reference to any tax, assessment, levy, impost, customs, stamp or other duty, or other charge of a similar nature (including, without limitation, any fine or penalty or interest payable in connection with any failure to pay or any delay in paying any of the same), whether national, provincial or local; | ||
(ix) | a judgment shall be construed so as to include any court order, injunction, declaration, decision and any other form of judicial relief; | ||
(x) | a receiver shall be construed so as to include any liquidator, trustee, administrator, receiver, administrative receiver, manager or similar officer; and | ||
(xi) | the winding up of a party to this Contract shall be construed so as to include the bankruptcy or liquidation of the party or any equivalent or analogous proceedings under the law of the jurisdiction in which such party is incorporated or any other jurisdiction in which such party carries on business. |
2.2 | The Index, Article, Clause and schedule headings and sub-headings are inserted for convenience only and shall not affect the interpretation of this Contract. |
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* | 5dBA relaxation in sports area and pasage ways | |
* | 5dBa relaxation near ventilation inlets and outlets |
- 84 -
[**] [Confidential Treatment]
- 85 -
/s/
Colin Veitch
on 7
th
September 2006
|
||
|
||
Signed for Aker Yards S.A.
|
||
|
||
Signature
illegible
on 7
th
September 2006
|
/s/
Colin Veitch
on 7
th
September 2006
|
||
|
||
Signed for Aker Yards, S.A.
|
||
|
||
Signature
illegible
on 7
th
September 2006
|
Item # | SPEC/REF | Description | Increase Aker / NCL | Decrease/Credit | ||||||||
3 | H.4.15.1.1 |
[**] [Confidential Treatment]
|
[**] [Confidential Treatment] | |||||||||
4 | H.4.15.6 |
[**] [Confidential Treatment]
|
[**] [Confidential Treatment] | |||||||||
17 | G.3.2 |
[**] [Confidential Treatment]
|
[**] [Confidential Treatment] | |||||||||
20 | H.4.1.2.1 |
[**] [Confidential Treatment]
|
[**] [Confidential Treatment] | |||||||||
26 | E.10.10.2 |
[**] [Confidential Treatment]
|
[**] [Confidential Treatment] | |||||||||
|
||||||||||||
Sum
|
[**] [Confidential Treatment] | [**] [Confidential Treatment] | ||||||||||
|
||||||||||||
Net Total
|
783,000.00 |
/s/
Colin Veitch
on 7
th
September 2006
|
||
|
||
Signed for Aker Yards S.A.
|
||
|
||
Signature
illegible
on 7
th
September 2006
|
/s/
Colin Veitch
on 7
th
September 2006
|
||
|
||
Signed for Aker Yards S.A.
|
||
|
||
Signature
illegible
on 7
th
September 2006
|
| Deck 7 breadth of public spaces remains at [**] [Confidential Treatment] meters. | |
| Area of public spaces on deck 14 and on deck 15 is increased to accommodate [**] [Confidential Treatment] at the aft part of the Ship. |
Clause | Page | |||
Article 1: Subject Matter Of Contract
|
1 | |||
1. Agreement To Build, Sell And Purchase
|
1 | |||
2. Description Of The Ship
|
2 | |||
3. Specification And Plans
|
3 | |||
4. Classification
|
4 | |||
5. Subcontracting And Makers List
|
6 | |||
6. Buyers Supplies
|
8 | |||
7. Builders Tally Of Buyers Supplies
|
10 | |||
Article 2: Supervision
|
12 | |||
1. Supervisor
|
12 | |||
2. Planned Programme And Plan Approval
|
13 | |||
3. Work Approval
|
15 | |||
4. Technical Disputes
|
16 | |||
Article 3: Modifications
|
17 | |||
1. Modifications
|
17 | |||
2. Classification And Regulatory Changes
|
18 | |||
3. Substitution Of Parts
|
19 | |||
Article 4: Title And Insurances
|
20 | |||
1. Title, Risk And Encumbrances
|
20 | |||
2. Insurances
|
21 | |||
3. Loss Or Damage
|
22 | |||
Article 5: Permissible Delays
|
24 | |||
1. Extension Of Time For Work
|
24 | |||
2. Delay Notices
|
26 | |||
Article 6: Tests And Liquidated Damages
|
28 | |||
1. Tests
|
28 | |||
2. Liquidated Damages
|
31 | |||
Article 7: Delivery And Guarantee
|
37 | |||
1. Delivery And Acceptance
|
37 | |||
2. Guarantee
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Article 8: Contract Price And Payment Terms
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1. Contract Price
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(1) | AKER YARDS S.A. , a company organised and existing under the laws of France and having its principal office at Avenue Bourdelle B.P. 90180, 44613 Saint-Nazaire Cedex, France (the Builder ); and |
(2) | F3 TWO, LTD. , a company incorporated in Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton HM12, Bermuda (the Buyer ). |
1.1 | On and subject to the express provisions of this Contract, the Plans and the Specification:- |
(i) | the Builder shall: |
(a) | design, engineer, build, launch, equip and outfit the passenger cruise ship more particularly described in the Plans and the Specification (the Ship ) at the Shipyard, and | ||
(b) | provide all components, equipment, gear, fittings, machinery, materials, parts, plant, outfit, spares and supplies which are necessary to achieve the objects and purposes described in Clause 1.1(i) (a) (the Parts ) other than the specified supplies to be provided by the Buyer (the Buyers Supplies ), | ||
(c) | supply all operating and maintenance manuals, training materials, spares lists, plans, drawings, records and other construction documents specified in the Specification (together, the Manuals ), | ||
(d) | provide or procure the provision of all training of the Buyers employees specified in the Specification, and | ||
(e) | test, complete, finish, sell and deliver the Ship to the Buyer at Shipyard. |
(ii) | the Buyer shall purchase and accept delivery of the duly completed Ship at the Shipyard. | ||
(iii) | The Builder, as a first class shipbuilder with knowledge of the Buyers performance and quality requirements and standards as expressed in the Plans and the Specification, shall ensure that all Work shall be carried out in a good and workmanlike manner and in accordance with the highest shipbuilding and marine engineering practices and standards for new passenger cruise ships, and so that (unless specified to the contrary in the Specification) the complexity, quality of workmanship, quality of Parts, design of the cabins, public areas and other interior spaces of the Ship specified in the Specification shall not be lower than the corresponding complexity, quality and design standards of the reference ships referred to in the Specification. |
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2. | DESCRIPTION OF THE SHIP | |
2.1 | The Ship shall be a passenger cruise ship suitable for continuous year-round worldwide cruising, with the following main dimensions and characteristics: |
(i) | Main Dimensions |
(ii) | Guaranteed Deadweight | ||
The guaranteed deadweight at delivery of the Ship, determined in accordance with the Specification, in seawater of 1.025 specific gravity at a design draft of 8.7 metres (the Design Draft ), shall be not less than 10,850 metric tons (the Guaranteed Deadweight ). |
(iii) | Passenger Accommodation |
(iv) | Crew Accommodation |
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(v) | Life saving equipment | ||
The Ship will be designed for the transport of [**] [Confidential Treatment] passengers and [**] [Confidential Treatment] crew, and there shall be eight (8) tenders on board and lifeboats according to the Regulatory Rules for a total of [**] [Confidential Treatment] persons. | |||
(vi) | Guaranteed Service Speed | ||
With the main engines operating at [**] [Confidential Treatment]% of maximum continuous rating at the Design Draft, with a [**] [Confidential Treatment]% sea margin in trial conditions and wind / sea not exceeding 2 on the Beaufort Scale, the Ships speed as measured during the sea trials in accordance with the Specification shall be at least [**] [Confidential Treatment] knots (the Guaranteed Service Speed or GSS ). | |||
(vii) | Guaranteed Fuel Consumption | ||
The Ship shall be delivered with [**] [Confidential Treatment] main engines. The fuel consumption of each such engine during the trials conducted at the engine manufacturers test bed in accordance with the Specification shall not exceed [**] [Confidential Treatment] per shaft KW per hour in the conditions referred to in section M.1.3 of the Specification (the Guaranteed Fuel Consumption or GFC ). |
2.2 | The details of the dimensions and characteristics referred to in Clause 2.1 above, as well as the definitions and method of measurements and calculations, are as indicated in the Specification and no changes shall be made to such dimensions and characteristics without the Buyers prior written approval. | |
2.3 | The hull number of the Ship will be D33 and that number shall in accordance with Clause 1.2 in Article 4 be placed upon the Ship and the Parts during construction. | |
3. | SPECIFICATION AND PLANS | |
3.1 | The Specification and the Plans describe in detail Work standards, certain specific features of the Work and the general scope of the Work but, although the contents of the Specification and the Plans are believed by the Builder and the Buyer to be accurate, all dimensions, measurements and other details shall be independently verified and checked by the Builder. If there is any error or inconsistency in the Specification or Plans that may adversely affect the technical performance of the Ship, the Builder shall correct the same, after first notifying the Buyer in writing and obtaining the Buyers written approval (which is not to be unreasonably withheld), without any increase in the Contract Price or any extension of the Delivery Date. | |
3.2 | Save as otherwise expressly provided in this Contract, the Builder shall be solely and directly responsible for all aspects of the design, performance and quality of the Work, and the fact that any calculations, measurements, drawings, plans, test results or any other documents and data relating to the Work shall have been made, prepared or supplied by the Buyer or shown to the Buyer or approved by or on behalf of the Buyer and/or any Regulatory Authority and/or the Classification Society and/or any other |
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specified person(s) or that modifications or alterations shall have been carried out in accordance with the Buyers requirements shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) any of the Builders obligations and/or liabilities under this Contract. |
3.3 | All Parts: |
(i) | shall be new or (with the Supervisors prior written approval which shall not be unreasonably withheld) unused, of good quality, suitable for their intended purpose and in strict and full accordance and compliance with this Contract, the Plans and the Specification; | ||
(ii) | save only as otherwise expressly provided for in the Specification or the Plans, or as further agreed by the duly authorised representatives of the Builder and the Buyer, shall be manufactured by leading, reputable and suitably qualified and experienced makers and suppliers of equipment to the passenger cruise ship industry; and | ||
(iii) | in addition to and without derogation from the Builders obligations under paragraphs (i) and (ii) above, shall be in strict and full accordance and compliance with the Builders usual high standards and practices of construction for passenger cruise ships of a similar standard. |
3.4 | The Builder shall furnish spare parts and maintenance tools of the kind and in at least the quantities required by the Specification and the Classification Society. The cost of such spares and tools are included in the Contract Price. The Builder at its own cost and risk shall be responsible for the handling, storing and bringing on board the Ship of all spares and tools. Spares and tools furnished by the Builder shall be properly protected against physical decay, corrosion and mechanical damage and shall be properly listed so that replacements can be readily ordered by the Buyer. |
4. | CLASSIFICATION |
4.1 | The Builder shall design and build the Ship under the supervision and special survey of Det Norske Veritas (the Classification Society ), in accordance with the regulations, requirements, resolutions and rules of the Classification Society as well as all additions and amendments thereto that are (i) in force as of the Signing Date and (ii) officially published as of the Signing Date for ratification, enactment or implementation at any time thereafter (before or after the Delivery Date) (the Class Rules ). For the avoidance of doubt, this provision does not (a) require the Builder to comply with proposed additions or amendments to the Class Rules that are still under discussion and that have not been officially published as at the Signing Date or (b) subject to the following proviso, require the Builder to comply with additions and amendments officially published as of the Signing Date if such compliance would prevent the Builder from delivering the Ship in accordance with the Class Rules in force on the Delivery Date provided that if the Builder becomes aware of any conflict between the Class Rules referred to at (i) and (ii) above the Builder shall promptly notify the Buyer and comply with the Buyers requests to obtain such dispensation or waiver as may reasonably be required by the Buyer so as to avoid or resolve the conflict. On delivery the Ship shall |
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achieve the class notation [**] [Confidential Treatment] of all conditions, notations, qualifications, recommendations, reservations and restrictions subject to the tolerances, and the qualifications on the Buyers right to reject the Ship and to terminate the Contract on account of the Builders failure to achieve such class notation, expressly provided for in Article 6, Clauses 2.10 to 2.15. | ||
4.2 | Decisions of the Classification Society as to whether or not Work complies with the requirements and standards of the Class Rules shall be final and binding on the parties. However, to the extent that any of the requirements and standards binding on the Builder under this Contract, the Plans or the Specification are higher than the Class Rules, the first sentence of this Clause 4.2 shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) the Builders obligations to ensure that the Work complies with such higher requirements and standards. | |
4.3 | The Builder shall also design and build the Ship under the supervision and in accordance with the regulations, requirements, resolutions and rules of the Regulatory Authorities, all other specified regulations, requirements, resolutions and rules, and all additions and amendments thereto that, are (i) in force as of the Signing Date and (ii) officially published as of the Signing Date for ratification, enactment or implementation at any time thereafter (before or after the Delivery Date) (the Regulatory Rules ). For the avoidance of doubt this provision does not (a) require the Builder to comply with proposed additions or amendments to the Regulatory Rules that are still under discussion and that have not been officially published as at the Signing Date or (b) subject to the following proviso require the Builder to comply with additions and amendments officially published as of the Signing Date if such compliance would prevent the Builder from delivering the Ship in accordance with the Regulatory Rules in force on the Delivery Date provided that if the Builder becomes aware of any conflict between the Regulatory Rules referred to at (i) and (ii) above the Builder shall promptly notify the Buyer and comply with the Buyers requests to obtain such dispensation or waiver as may reasonably be required by the Buyer so as to avoid or revolve the conflict. On delivery the Ship shall comply with the Regulatory Rules free of all conditions, notations, qualifications, recommendations, reservations and restrictions provided that where the Specification expressly allows compliance with any Regulatory Rules or other requirements to be demonstrated by tests carried out after delivery of the Ship, the Builder shall be obliged to take all such steps as may be practicable before delivery of the Ship in order to obtain advance comments so that any issues raised by the relevant Regulatory Authorities can be addressed before delivery and so that compliance with the relevant Regulatory Rules can be demonstrated after delivery in the manner and in accordance with the timetable provided for in the Specification. | |
4.4 | Decisions of a Regulatory Authority as to whether or not Work complies with its Regulatory Rules shall be final and binding on the parties. However, to the extent that any of the requirements and standards binding on the Builder under this Contract, the Plans or the Specification are higher than the relevant Regulatory Rules, the first sentence of this Clause 4.4 shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) the Builders obligations to ensure that Work complies with such higher requirements and standards. |
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4.5 | All classification, certification, testing, survey and other fees and charges payable to the Classification Society and any Regulatory Authority in relation to the Work shall be for the account of the Builder. |
4.6 | The Builder shall provide (or procure that the Classification Society or the Regulatory Authorities provide) the Buyer with copies of all correspondence, minutes of meetings and other documents passing between the Builder, the Classification Society or any Regulatory Authorities in relation to the Work. In addition, the Buyer may attend all meetings between the Builder, the Classification Society or any Regulatory Authorities, and the Builder shall keep the Buyer well informed (in advance) of all of such meetings. The Builder shall promptly inform the Supervisor of any unscheduled meetings between the Builder and the Classification Society or any Regulatory Authorities and, if the Supervisor does not attend any of such meetings, the Builder shall give the Supervisor a reasonably detailed account of the matters discussed and decisions taken at the meeting. |
4.7 | The Builder and its Subcontractors shall comply with all laws, rules and regulations applicable to the Builders activities in respect of the Work, and accordingly the Builder shall obtain all licenses, permits, certificates and permissions required for the execution and completion of the Work, including those required by the Classification Society and the Regulatory Authorities. |
4.8 | The Builder shall be responsible for obtaining the approval of all drawings, calculations and other necessary matters by the Classification Society and the Regulatory Authorities, and shall arrange for all applicable certificates and approvals to be issued. |
5. | SUBCONTRACTING AND MAKERS LIST |
5.1 | The main assembly, construction and erection of the Ship, including the installation of the Ships main Parts and all other major elements of the Work, shall be carried out by the Builder at the Shipyard. |
5.2 | On prior written notice to the Buyer, the Builder may subcontract the fabrication of steel blocks to European Subcontractors who are certified by the Classification Society as meeting DNV MPQA standards (or equivalent, if another Classification Society is appointed with the Buyers agreement) and who are otherwise objectively regarded as reputable and suitably qualified and experienced contractors to the passenger cruise ship industry. |
5.3 | Appendix 3 of the Specification contains an agreed list (the Makers List ) of potential Subcontractors for the performance of important elements of the Work and for the supply of major Parts. The Makers List may be modified by agreement of the parties in order to take advantage of technical developments and improvements. Either party may make proposals to the other in this respect and each party agrees to give reasonable consideration to any such proposals but neither party will be obliged to accept any proposal that adversely affects its obligations, liabilities or interests under the Contract. |
5.4 | The Builder shall use the approved Subcontractors referred to in the Makers List for the execution of the Work, and the supply of the Parts, therein specified. The Builder shall not be entitled, without the express prior written approval of the Buyer (which may be |
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withheld on reasonable grounds by the Buyer), to change any Subcontractor referred to in the Makers List or to engage any new Subcontractor for the same element of the Work or the supply of the same Parts or any replacements for such Parts. Nor shall the Builder permit any of such approved Subcontractors to subcontract any of their Work or supply obligations in a manner that is inconsistent with the other provisions of this Clause 5. |
5.5 | Where more than one Subcontractor is named in the Makers List in relation to an element of the Work or a Part, the Builder must nominate its choice of Subcontractor by notice in writing to the Buyer as soon as possible and at the same time provide the Buyer with the relevant technical specifications for Work or the Part in question. | |
5.6 | The Buyer will have up to ten (10) Working Days from its receipt of each written nomination and the related specifications within which to accept or to reject the Builders nomination and instead select a different Subcontractor from the Makers List. | |
5.7 | Before purchasing any major Parts from, or subcontracting any major elements of the Work (apart from the Parts and Work elements referred to in Clause 5.2) to, Subcontractors who are not named in the Makers List, the Builder will notify the Buyer in writing of its proposal and provide the Buyer with the relevant technical specifications in order to allow the Buyer to submit its comments to the Builder. The Buyer will have ten (10) Working Days within which to object to such proposal on the grounds of the availability of spares and the quality of post-delivery services support in North America. | |
5.8 | If the Buyer wishes the Builder to select a Subcontractor other than the one nominated by the Builder then the difference, if any, between that Subcontractors price and the price of the Subcontractor nominated by the Builder shall be added to or (as the case may be) subtracted from the Contract Price in accordance with the provisions of Article 3, Clause 1. Any other differences between the supply and warranty conditions offered by the Subcontractor selected by the Buyer and the conditions offered by the Subcontractor nominated by the Builder shall be accepted and borne by the Buyer. | |
5.9 | The Builder and the Buyer will work together closely in good faith, and each will use all reasonable commercial efforts, to avoid, minimise and mitigate the effects of any cost differentials between competing Subcontractors. | |
5.10 | The Builders appointment, contracting, employment or use of any workmen, Subcontractors, agents and other representatives (including, without limitation, any such persons appointed or employed or contracted by the Builder with the Buyers approval) shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) any of the Builders obligations and/or liabilities under or in connection with this Contract nor diminish the Builders responsibility to the Buyer to manage, supervise and conduct such persons in a workmanlike manner and in accordance with the practices and standards referred to in Clause 1.1. | |
5.11 | Save as otherwise agreed between the parties, all contacts with Subcontractors shall be made through the Builder. However, the Buyer may at any time contact and contract with Subcontractors in relation to post-delivery maintenance and support arrangements only. |
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5.12 | The Builder covenants with the Buyer that: |
(i) | it shall ensure that there is not and will not be created by the Builder any legal relationship between the Buyer and any Subcontractors appointed or otherwise used by the Builder (save for such relationships as may be created by reason of the warranty and guarantee assignments to be made by the Builder under Clause 2.9 of Article 7 or by mandatory operation of law); | ||
(ii) | it shall take reasonable care in the selection, employment, appointment and supervision of all Subcontractors who supply Parts, and shall procure their employment or appointment on terms consistent with the Buyers rights, and the Builders obligations and liabilities, under this Contract including, without limitation, such matters as (a) the nature of guarantees and warranties, and liberty for the Builder to assign all or any part(s) of such guarantees and warranties to the Buyer, (b) good service of the Subcontractors, (c) reliability of the Subcontractors, (d) availability and quality of pre-delivery training, and (e) availability of spares and quality of post-delivery service support as these matters are contemplated by the Specification; | ||
(iii) | it shall prevent its Subcontractors from exercising any rights to arrest, attach, detain or encumber the Ship, the Parts, or any of the Buyers Supplies; | ||
(iv) | it shall promptly provide the Buyer with such information and access as it may require from time to time in order to verify the performance of the supplies, services and Work provided or carried out by the Builders Subcontractors; | ||
(v) | it shall promptly take all necessary steps to ensure the proper performance of any such Subcontractors; | ||
(vi) | without prejudice to the operation of Article 10, Clause 2, it shall be fully, directly and solely responsible (as between the Builder, the Buyer and the other protected parties) for the acts, omissions and defaults of the Builders Subcontractors (including, without limitation, any persons appointed, employed or contracted by the Builder with the approval of the Buyer) and for the acts, omissions and defaults of the respective officers, employees, workmen, agents and other representatives of the Builder and its Subcontractors; and | ||
(vii) | upon the Buyers reasonable request from time to time, it shall promptly provide the Buyer with information relating to any subcontract. |
5.13 | All labour costs (including overtime costs) of the Builder and of the workmen, Subcontractors, and others used by the Builder shall be for the account of the Builder. | |
6. | BUYERS SUPPLIES | |
6.1 | The Buyer, at its own risk and expense, shall supply and deliver the Buyers Supplies to the Shipyard on a DDP (Incoterms 2000) basis, free of any encumbrances, and in proper condition for installation or incorporation in, or stowage on board, the Ship in accordance with the agreed delivery schedule in Part G of the Specification as the same is updated and amended by agreement of the parties during the construction period. |
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6.2 | The Builder shall, at its own risk and expense, receive, check as to visual compliance with transport documents, inspect the packaging, insure (in accordance with Clause 2 of Article 4), clearly mark as the property of the Buyer, safely store and keep well protected and completely segregated from Parts and other materials owned by the Builder or other parties, and properly put on board and thereafter install or incorporate in or stow on the Ship, all of the Buyers Supplies from time to time delivered to the Shipyard, and (whenever so requested by the Supervisor) the Builder shall also assist the Buyer to clear any Buyers Supplies through French customs. If any packaging is discovered damaged, the Builder will promptly inform the Buyer and the parties representatives will jointly unpack and inspect the content of the package. In addition, the Buyers personnel may unpack any other consignment of Buyers Supplies in order to check its conformity with the related orders and transport documents. |
6.3 | In order to facilitate the installation and incorporation of the Buyers Supplies by the Builder, the Buyer shall furnish the Builder with all plans, instruction books, test reports and certificates provided to the Buyer by its suppliers. Upon request by the Builder, the Buyers available personnel at the Shipyard will assist or cause the Buyers relevant suppliers to assist the Builder and its Subcontractors with the installation of the Buyers Supplies. If any Buyers Supplies (including relevant technical documentation and any Buyers Supplies to be replaced by the Buyer pursuant to this Clause 6) have not been delivered within five (5) Working Days after the Supervisors receipt of a notice from the Builder under Clause 6.4(ii), the Builder shall be entitled to proceed with the construction of the Ship without installing or incorporating such Buyers Supplies in or on the Ship and the lack of any such installation or incorporation shall not be treated as a defect in the Ship provided that if the relevant Buyers Supplies may be installed or incorporated in or on the Ship at a later date without any additional cost to the Builder or any delay in delivery of the Ship then the Builder will accommodate any request by the Supervisor to extend the date for delivery and installation or incorporation of the relevant Buyers Supplies. |
6.4 | The Builder: |
(i) | shall be liable to the Buyer for any damage to or loss of any Buyers Supplies caused by Builders default and occurring or arising after delivery of such Buyers Supplies under Clause 6.1; and | ||
(ii) | shall notify the Supervisor as soon as practicable of any loss of, damage to, or deficiency in the supply or performance of, any of the Buyers Supplies or any late delivery thereof in accordance with Clause 6.3. |
6.5 | Where the Builder is liable to the Buyer for any damage to or loss of any Buyers Supplies, the Builder will promptly replace the relevant Supplies with identical items at its risk and expense, in which case any insurance proceeds paid in respect of such loss and damage will be paid to and retained by the Builder. In all other cases where the Builder gives notice to the Buyer under Clause 6.4(ii), the Buyer will as soon as may reasonably be practicable replace the relevant Buyers Supplies at its risk and expense. For the avoidance of doubt, the other provisions of this Clause 6 shall apply to such replacements. |
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6.6 | The Buyer acknowledges and agrees that the Builder shall not be responsible for the design, performance or quality of Buyers Supplies. |
6.7 | The Contract Price includes an allowance of [**] [Confidential Treatment] which may be used by the Buyer for the payment of Buyers Supplies ordered by the Buyer. This allowance will be paid for the Buyer, through each payment of the Contract Price under Article 8 Clause 2.1, in the following five tranches: |
(i) | the Contract Price payment under Article 8, Clause 2.1 (i) will include the sum of [**] [Confidential Treatment] in respect of the first tranche of the allowance; | ||
(ii) | the Contract Price payment under Article 8, Clause 2.1 (ii) will include the sum of [**] [Confidential Treatment] in respect of the second tranche of the allowance; | ||
(iii) | the Contract Price payment under Article 8, Clause 2.1 (iii) will include the sum of [**] [Confidential Treatment] in respect of the third tranche of the allowance; | ||
(iv) | the Contract Price payment under Article 8, Clause 2.1 (iv) will include the sum of [**] [Confidential Treatment] in respect of the fourth tranche of the allowance; and | ||
(v) | subject to Clause 6.9, the Contract Price payment under Article 8, Clause 2.1 (i) will include the sum of [**] [Confidential Treatment] in respect of the fifth tranche of the allowance. |
6.8 | As soon as each pre-delivery payment of the Contract Price has been made by the Buyer under Article 8 Clause 2.1, the Builder shall pay the relevant tranche of the allowance to the Buyer. |
6.9 | Upon delivery and acceptance of the Ship in accordance with this Contract, the Builder shall pay the fifth tranche of the allowance to the Buyer in or towards payment for Buyers Supplies ordered for the Ship provided that if the aggregate total cost of Buyers Supplies ordered for the Ship shall be less than the amount of the allowance, the amount of the fifth tranche of the allowance payable by the Buyer and hence the amount of the Contract Price payable under Article 8 Clause 2.1(v) shall be reduced accordingly. |
6.10 | Within fifteen (15) days after the Ship has been delivered by the Builder and accepted by the Buyer in accordance with the express provisions of this Contract, the Buyer will remove from the Shipyard any of the Buyers Supplies which have not been used in the construction of, or otherwise delivered with, the Ship. |
7. | BUILDERS TALLY OF BUYERS SUPPLIES |
7.1 | The Builder shall make and keep fully itemised and up-to-date records of all Buyers Supplies from time to time delivered to the Shipyard and/or other premises of the Builder (and/or its Subcontractors) and, without prejudice to the generality of the foregoing, the |
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Builder shall ensure that such records are made and kept in the form used by the Builder for its own stocks and show: |
(i) | the date of delivery to the Builder (or its Subcontractors) of each batch or consignment of Buyers Supplies; | ||
(ii) | where and how such Buyers Supplies are stored; | ||
(iii) | when such Buyers Supplies are incorporated or installed in, or stowed on, the Ship; and | ||
(iv) | the balance (in usual units) of any unused Buyers Supplies. |
7.2 | The Builder shall provide the Supervisor, on a monthly basis, with a complete set of the records described in Clause 7.1 and all amendments of, or supplements to, such records. |
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1. | SUPERVISOR | |
1.1 | The Buyer may retain a supervisor (the Supervisor ) and a supervision team of a reasonable size at the Shipyard to maintain close contact with the Builder and, on behalf of the Buyer, to supervise the Work. The Buyer shall be responsible for obtaining and maintaining any necessary French permissions and authorisations for the Supervisor and his team to carry out their duties, and the Builder will assist the Buyer in this regard. | |
1.2 | The Supervisor and his team shall carry out their inspections and supervision in an efficient manner and in such a way as to avoid any increase in the building costs or delays to the Work. | |
1.3 | All salaries and, subject to Clause 1.4, costs and expenses of the Supervisor and his team shall be for the Buyers account. | |
1.4 | The Builder shall provide, free of charge to the Buyer, the Supervisor and his team suitably equipped and maintained changing rooms and offices in close proximity to the Shipyard and all such other facilities within such offices as may be necessary to enable the Supervisor and the Supervisors team effectively to carry out their Work including, without limitation, direct call national and international telephone lines (in respect of which the Builder will pay for line rentals and local calls and the Buyer will pay the actual cost of all other calls plus a 5% administration fee), fax lines and machines, broadband computer connections, and laser printers. The Builder will also: allow the Supervisor and his team to use the refectory at the Shipyard; and assist the Supervisor to find lodgings for his team by introducing him to local rental agents. | |
1.5 | A written statement confirming the Supervisors appointment and the scope of his actual authority shall be given by the Buyer to the Builder within thirty (30) days after the Effective Date. Written notice of revocation of appointment of the Supervisor and/or any change in the scope of his actual authority shall be given by the Buyer to the Builder as soon as reasonably practicable after any such revocation and/or change has been decided upon by the Buyer. | |
1.6 | The Supervisor and his team shall be given notice of and shall observe the safety and security precautions and other rules and regulations in force from time to time at the Shipyard and at the premises of the Builders Subcontractors. | |
1.7 | The Builder may request the Buyer to replace a representative who is deemed unsuitable and unsatisfactory for the proper progress of the Ships construction. The Buyer shall investigate any such request (if necessary, by sending its representative(s) to the Shipyard). If the Buyer considers the Builders request to be justified, it will effect the replacement as soon as may be conveniently arranged. | |
1.8 | The Buyer may request the Builder to replace any representative in the Builders equivalent of the Supervisors team who is deemed unsuitable and unsatisfactory for the proper progress of the Ships construction. The Builder shall investigate any such request and, if the Builder considers the request to be justified, it will effect the replacement as soon as may be conveniently arranged. |
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1.9 | Each of the Builder and the Buyer agrees to work closely with the other and to act reasonably and in good faith with a view to agreeing, by no later than the first anniversary of the Effective Date, the terms necessary to regulate the timetable, conditions and procedures for the advance occupation of certain parts of the Ship by the Buyer for crew familiarisation, training and lodging purposes. | |
1.10 | The Builder shall allow key representatives of the Buyer for the Ship to attend the Shipyard upon reasonable prior written notice to the Builder, and to be present during tests and for familiarisation, training and lodging purposes | |
2. | PLANNED PROGRAMME AND PLAN APPROVAL | |
2.1 | Each of the Builder and the Buyer acknowledges and agrees that successful completion of the construction of the Ship in accordance with this Contract, the Plans and the Specification will require a high degree of co-operation and flexibility on the part of both parties. | |
2.2 | Notwithstanding the generality of Clause 2.1, the Work shall be carried out in strict accordance with the express provisions of this Contract, the Specification and the Plans, and on the Effective Date the Builder will provide the Supervisor with: a planned programme containing a critical path treatment of the major and significant elements of the Work, in their proper sequence, which must be completed to ensure delivery of the Ship (the Planned Programme ); and the schedule of inspections and tests referred to in Part G.11 of the Specification (the Tests Schedule ). | |
2.3 | Without prejudice to the Builders express obligations under the other provisions of this Contract, if the Builder considers it necessary to make any material alterations in the Planned Programme the Builder shall promptly provide the Supervisor with written details of and reasons for the proposed alterations. Without prejudice to the Builders express rights under the other provisions of this Contract, no alterations to the Planned Programme shall delay completion of the Work or delivery of the Ship in accordance with this Contract, nor shall any such alterations accelerate the performance or change the tenor of any of the Buyers obligations under this Contract. | |
2.4 | The Builder shall submit to the Buyer each month, commencing on the date falling three (3) months after the Effective Date, until delivery, the following documentation (the reasonable accuracy of which the Builder hereby warrants): |
(i) | a status report (in form acceptable to the Buyer) of the Work as compared with the Planned Programme, including the critical path; | ||
(ii) | a report (in form acceptable to the Buyer) setting out the actual progress of the Work during the previous month as compared with the Planned Programme; | ||
(iii) | a list of modifications (if any) agreed or determined during the previous month; | ||
(iv) | a report in proper form on the delivery of Parts and Buyers Supplies during the previous month. |
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2.5 | Without prejudice to the Builders other obligations under this Contract, if the construction of the Ship should, for any reason whatsoever, be materially delayed beyond the time-frame indicated in the Planned Programme, the Builder shall promptly notify the Buyer and thereafter keep the Buyer regularly informed about the steps being planned and taken by the Builder in order to try to overcome the delay. | |
2.6 | All plans, drawings and other documents required by the Specification to be developed and supplied by the Builder to the Buyer for approval shall be delivered by the Builder in their proposed final form in three (3) hard copies (and, if so requested, electronically) to the Supervisor for approval by and on behalf of the Buyer. The Builder agrees to submit all such plans, drawings and documents in such timely manner that the Buyer may have a reasonable opportunity to review and approve or comment on the same within the periods provided for in Clauses 2.7 and 2.9. | |
2.7 | Within six (6) Working Days after the Supervisors receipt of each set of plans, drawings and other documents submitted to the Supervisor for approval pursuant to the Specification one (1) copy of each such plan, drawing and other document shall be returned by the Buyer to the Builder either as approved or as rejected by the Buyer provided that all rejections shall specify with reasons all aspects of the rejected plans, drawings or documents which in the opinion of the Buyer do not, or which provide for Work which does not, comply with the requirements of this Contract, the Plans or the Specification. | |
2.8 | If a plan, drawing or other document is approved by the Buyer, the Builder shall proceed with the Work shown therein. | |
2.9 | If any aspect of a plan, drawing or other document is rejected by the Buyer under Clause 2.7, and the Builder accepts such rejection, the Builder shall promptly alter the relevant plan, drawing or document without charge to the Buyer and resubmit it as altered for approval by the Buyer in accordance with the procedure and timetable referred to in Clause 2.7. For the avoidance of doubt, if any plans, drawings or other documents rejected by the Supervisor contain any error, omission, ambiguity, inconsistency, inadequacy or other deficiency they and the related Work shall be remedied by the Builder (if the Builder accepts such rejection) without any increase in the Contract Price or any extension of the Delivery Date. | |
2.10 | All Work performed by the Builder prior to approval by the Buyer of all plans, drawings or documents relating to such Work shall be at the sole risk and expense of the Builder without prejudice to the Builders right to dispute any rejection by the Buyer under Article 13. | |
2.11 | If the Buyer (or the Supervisor on the Buyers behalf) fails to return to the Builder or (in the case of any rejections) fails to give reasons, in accordance with the time limits referred to in Clause 2.7 and Clause 2.9, any plan or drawing or other document and this failure is not remedied within two (2) Working Days after the Supervisors receipt of a written notice from the Builder specifying such failure, such plan or drawing or other document shall be deemed to have been automatically and expressly approved by the Buyer without any comments. |
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2.12 | Although the Buyers approval (or deemed approval) of plans, drawings and other documents shall preclude the Buyer from subsequently requiring any changes therein (except pursuant to Article 3), such approval or deemed approval shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) any of the Builders obligations and/or liabilities under or in connection with the Contract. | |
2.13 | If the Builder discovers any aspect of the Plans, the Specification or the Work that does not conform with the Class Rules or the Regulatory Rules or the shipbuilding and marine engineering practices referred to in Article 1, Clause 1.1 the Builder shall promptly notify the Supervisor and submit a proposal to the Supervisor for the Buyers approval (such approval not to be unreasonably withheld or delayed) for the removal of the non-conformity without any cost to the Buyer, without any increase in the Contract Price and without any extension of the Delivery Date. | |
3. | WORK APPROVAL | |
3.1 | Throughout the period during which the Ship is being built the Builder will conduct its usual quality control programme of inspections, testing and supervision by a team of the Builders staff specially designated for this purpose but the Work and all Parts, as the same may at any time and at any place be completed or be in progress, shall also be subject to inspection by and the approval of the Buyer (acting through the Supervisor and his team) and the Classification Society. | |
3.2 | Subject only to the proviso at the end of this Clause 3.2, the Builder shall at all times during normal working hours and subject to the usual regulations of the Shipyard give the Supervisor and the Supervisors team free and ready access to (and a free right to inspect) the Ship and Parts at any place where Work is being done or tests are being carried out or Parts are being processed or stored in connection with the building of the Ship including the Shipyard and other yards, workshops and stores of the Builder, and the premises of the Builders Subcontractors who are doing Work in connection with the building of the Ship or assembling, manufacturing, processing or storing of Parts, and the Builder shall ensure that provisions equivalent to the provisions of this Clause 3.2 are inserted into all subcontracts from time to time made by it in connection with the Work provided that the Supervisor or any member of his team must be accompanied by a representative of the Builder during all visits to the design offices of the Builder and any Subcontractors. | |
3.3 | The Buyer shall be entitled but not obliged to reject any Work or Parts that do not comply with the requirements of this Contract, the Plans and the Specification unless and to the extent that such non-compliance is the direct result of the Builder seeking to avoid (in a manner approved by the Buyer, such approval not to be unreasonably withheld) any non-conformities referred to in Clause 2.13 provided that all rejections shall be made in writing, and shall specify with reasons those aspects of the Work or Parts inspected which in the opinion of the Buyer do not comply with the requirements of this Contract, the Plans or the Specification. | |
3.4 | If any Work or Parts shall be rejected by the Buyer as not complying with the Contract, the Plans or the Specification, the Builder shall promptly remedy or replace such Work or Parts without any increase in the Contract Price or any extension of the Delivery Date |
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unless the Builder does not accept the validity of the Buyers rejection in which case the provisions of Clause 4 below shall apply. |
3.5 | The Builder shall not cover up any Part or element of the Work that the Supervisor or his team are entitled to inspect so as to render impossible any proper inspection thereof by the Supervisor without giving the Supervisor sufficient advance written notice and a reasonable opportunity to inspect the relevant Part or Work. If any such covering up occurs the Buyer may require the Builder to uncover the relevant Part or Work so that the Supervisor may make its inspection. For the avoidance of doubt, if the Supervisor receives sufficient advance written notice and reasonable opportunity to inspect the relevant Part or Work but fails to do so, the Buyer will be deemed to have waived its right to require the Builder to uncover such Part or Work. | |
3.6 | If the conduct of subsequent Work invalidates the results of earlier inspections, tests or trials on previously completed Work, the Supervisor may require the Builder to carry out further inspections, tests and trials on such Work. | |
3.7 | The inspection, supervision and testing from time to time carried out by the Supervisor and his team shall not in any manner or to any extent relieve the Builder from (or otherwise reduce) any of the Builders obligations and/or liabilities under or in connection with the Contract. | |
4. | TECHNICAL DISPUTES | |
4.1 | If, at any time before delivery of the Ship, there is a difference of opinion between the Builder and the Buyer in relation to any technical matter regarding the Specification and/or the Plans (including any dispute concerning compliance with any of the quality requirements and other technical standards provided for in this Contract), then either party may give a notice to the other party and if the parties do not resolve the difference of opinion within five (5) Working Days after the date of service of such a notice, the Builder or the Buyer may require that the difference of opinion be treated as a Dispute of a technical nature to be resolved in accordance with Clause 1 of Article 13. |
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1. | MODIFICATIONS | |
1.1 | This Contract, the Plans and the Specification may be modified from time to time by agreement of the parties provided that all reasonable and timely modifications requested by the Buyer, and/or any modifications required to be made under Clause 2 which are occasioned by any changes in the Class Rules or in any of the Regulatory Rules after the Signing Date, shall be implemented by the Builder if the Buyer agrees to necessary modifications to the Contract Price, the Delivery Date and any other relevant provisions of this Contract, the Builder agreeing to act in good faith and use all reasonable efforts to accommodate any such reasonable requests by the Buyer so that all such modifications shall be made: |
(i) | at the lowest cost reasonably possible agreed or determined in accordance with Clause 1.2; | ||
(ii) | within the shortest period of time reasonably possible; and | ||
(iii) | without any loss in the relative priority of the Work for the Ship compared to other construction Work in the Shipyard, |
1.2 | Any adjustment of the Contract Price to be made pursuant to this Clause shall be in a fixed amount, not subject to any escalation and shall reasonably reflect the Builders increased costs (or savings in costs) directly, necessarily and reasonably occasioned by the proposed modification. If the parties cannot agree on the amount of such increased costs (or savings in costs), the same shall be deemed to be the sum of: |
(i) | the net positive or negative change in the Builders newbuilding labour costs (excluding profit) as a direct and necessary result of the modification, (including the direct cost of any necessary design and engineering services not otherwise charged to the Buyer) as of the date when the requirement to effect the modification is proposed; | ||
(ii) | the net positive or negative change in the Builders cost of materials (excluding profit) as a direct and necessary result of the modification; and | ||
(iii) | the Builders agreed profit, which shall be a positive number equal to [**] [Confidential Treatment] per cent. [**] [Confidential Treatment] of the sum of the amounts determined in accordance with paragraphs (i) and (ii), in the case of increased costs only. |
1.3 | Any agreement on a modification ( AOM ) of this Contract, the Plans or the Specification shall be agreed by the parties before execution of such alterations and changes, and shall include: |
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(i) | any increase or decrease in the Contract Price agreed or determined in accordance with Clause 1.2; | ||
(ii) | any change in the Delivery Date, and | ||
(iii) | any other adjustment to or amendment of any relevant provisions of this Contract, the Plans or the Specification, |
that is necessarily and reasonably occasioned by such modification. | ||
Whenever so requested by the Buyer, the Builder will verify its calculations by providing to the Buyer, on an open book basis, a reasonably detailed explanation of the Builders calculations and details of the man-hours and other data used in connection with any of the alterations or changes occasioned by any modification to be made under this Article 3. For all purposes of this Contract, open book basis means the provision by or on behalf of the Builder of all such invoices and other supporting information, and of all such calculations, determinations and other data as may be required in order to afford complete transparency to the Buyer but it does not entitle the Buyer to make an audit of the Builders accounts. | ||
1.4 | Any agreement on a modification of this Contract, the Plans or the Specification shall be recorded and evidenced by an AOM in the form set out in Schedule 1 of this Contract and signed by the parties duly authorised representatives, and following the signature of each AOM the Builder shall modify the building of the Ship in accordance therewith. | |
1.5 | If the parties fail to reach agreement on all matters relating to a modification requested by the Buyer within six (6) Working Days from the date on which the Builder has submitted its cost modification proposal to the Buyer or if there is any Dispute between the parties as to the cost of the requested modification then, if the Buyer so requires, the Builder will make the requested modification before the Dispute has been resolved provided the Buyer: |
(i) | makes an AOM pursuant to Clause 1.4 in respect of the agreed non-cost related alterations and changes to this Contract, the Plans and the Specification occasioned by the modification; and | ||
(ii) | undertakes to pay the amount found due to the Builder under Article 13 Clause 1.1. |
2.1 | If, after the Signing Date, any Class Rules and/or any Regulatory Rules are changed by the Classification Society or any Regulatory Authority, each party shall promptly notify the other in writing of the relevant change(s) and as soon as reasonably practicable thereafter the Builder shall propose the necessary modifications to be made to this Contract, the Plans and the Specification. | |
2.2 | If, following its receipt of a notice under Clause 2.1, the Buyer reasonably considers that the operation of the Ship would permit of a dispensation or waiver, the Builder will at the |
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request of the Buyer apply for a dispensation from, or waiver of compliance with, the relevant change(s). |
2.3 | If the Buyer does not require the Builder to apply for a dispensation or waiver or it has not been possible to obtain a dispensation or waiver within a period of fifteen (15) days after the Buyers receipt of a notice under Clause 2.1 (or such longer period of time as the parties may reasonably agree in the light of all the circumstances then prevailing), the parties shall make an agreement to modify this Contract in accordance with and subject to the conditions of Clause 1 and thereafter the Builder shall make the relevant change(s) in the design or building of the Ship. | |
3. | SUBSTITUTION OF PARTS | |
3.1 | The Builder is aware of the commonality of supply and other service related principles by reference to which the Buyer has approved the selection of all main Parts and the related Subcontractors. If (notwithstanding all reasonable efforts on the part of the Builder and provided that orders for the same were placed in good time by the Builder) any Parts are not available at the time required for their installation or incorporation in the Ship, the Builder may (and, if such situation is not directly caused by one or more of the contingencies specified in Clause 1.3 of Article 5, with the prior written approval of the Buyer which is not to be unreasonably withheld) use suitable substitute Parts that are at least the equivalent in standard and quality as the Parts that were not available and that are capable of meeting all of the requirements of: |
(i) | this Contract, the Plans and the Specification; and | ||
(ii) | the Classification Society and the Regulatory Authorities. |
3.2 | Where a proposed substitution of Parts is approved by the Buyer and (as necessary, by the Classification Society and any relevant Regulatory Authority), the Builder shall bear all additional costs and expenses whatsoever in relation to such substitution. |
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1. | TITLE, RISK AND ENCUMBRANCES | |
1.1 | Title to the Ship and all Parts (but not Buyers Supplies, title to which will at all times be and remain with the Buyer) shall pass to the Buyer upon the Ships delivery to, and acceptance by, the Buyer in accordance with Clause 1 in Article 7 and until such delivery and acceptance shall have occurred all risks connected with the Work including, without limitation, all risks in relation to the Ship, all Parts and all Buyers Supplies from the time when they are taken into the custody of the Builder or any of its Subcontractors shall lie exclusively with the Builder. | |
1.2 | Immediately upon: |
(i) | the receipt by the Builder (or any of its Subcontractors) of any Buyers Supplies; and | ||
(ii) | the delivery to, or the assembly fabrication or manufacture by, the Builder (or any of its Subcontractors) of all steel blocks and other main Parts, |
the Builder shall mark (or cause its relevant Subcontractors to mark) the same and the Ship (as it is from time to time built) with hull number D33. | ||
1.3 | The Builder shall have no authority to create (and waives all rights to create) any encumbrances whatsoever over any of the Buyers Supplies, nor shall it permit any encumbrances of any kind (other than permitted encumbrances) to be imposed on or asserted against any of the Buyers Supplies. | |
1.4 | At any time when a payment is due to the Builder under this Contract, and at all other reasonable times, the Buyer may require the Builder to provide a written statement satisfactory to the Buyer showing what, if any, encumbrances of any kind (other than permitted encumbrances) have been imposed on or asserted against any of the Buyers Supplies. | |
1.5 | If any encumbrance of any kind (other than any permitted encumbrance) is imposed on or asserted against any of the Buyers Supplies as a result of the acts or omissions of the Builder or those for whom the Builder is responsible under this Contract, the Builder shall promptly notify the Buyer and shall, not later than ten (10) days thereafter, secure the discharge or release of such encumbrance provided that if the Builder desires to contest any such encumbrance and such discharge or release is not available under law during such contest (including, without limitation, through the filing of a bond or other security), the Builder shall immediately take such steps to prevent such encumbrance from delaying or otherwise adversely affecting the Work and shall indemnify fully, hold harmless and defend the Buyer and all other protected parties from and against all losses which any of them may sustain or incur as a result of the imposition of any such encumbrance. | |
1.6 | Notwithstanding the provisions of Clause 1.5, the Buyer may secure the removal of any such encumbrance in which event the Builder shall reimburse the Buyer in full for its costs (including legal fees) of securing such removal. |
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1.7 | Prior to the installation of any of the Buyers Supplies that have been purchased, paid for or provided by the Buyer, the Buyer shall confirm in writing to the Builder whether any permitted encumbrances have been imposed on or asserted against such Buyers Supplies and shall discharge any such permitted encumbrances prior to the installation of such Buyers Supplies, and if the Buyer fails to discharge any such permitted encumbrances, the Builder may withhold the installation of the relevant Buyers Supplies in which case any resulting delays will be the Buyers responsibility. |
1.8 | The Builder may grant one or more mortgages over the Ship and Parts (a Mortgage ), but not over the Buyers Supplies, to one or more mortgagees as security for the Builders construction financing of the Ship and for the financing of the Refund Guarantees provided that : |
(i) | the aggregate total amount to be secured by any such Mortgages shall not exceed the Contract Price (as the same may be increased in accordance with the express provisions of this Contract); and | ||
(ii) | the Builders obligations under the construction financing arrangements referred to above, and the related Mortgages and other encumbrances, shall be without recourse to the Buyer and other protected parties. |
1.9 | All encumbrances (including, without limitation, all Mortgages) over the Ship and Parts, and all associated entries in any registers, shall be cancelled and discharged at the latest simultaneously with the Ships delivery to the Buyer. |
2.1 | From the date when steelwork for the first hull section of the Ship is completed and until delivery to the Buyer the Ship, all Parts, and all Buyers Supplies (for their insured value as declared by the Buyer) taken into the custody of the Builder (or any of its Subcontractors) and whether or not built into or installed on or in the Ship, shall be at the exclusive risk of the Builder which shall at its own expense keep the same insured with first class European and / or Lloyds of London insurers acceptable to the Buyer against all usual builders risks, including protection and indemnity risks, tests risks, and war risks under policy terms that shall be no less favourable than those of the London Institute Builders Risks clauses (with appropriate amendment if any sea trial tests are to be conducted more than 250 nautical miles from the Shipyard). All premiums shall be for the sole account of the Builder. Deductibles shall be applied to the Builder or the Buyer in respect of their respective interests in the insurances to be arranged by the Builder under this Article (the Insurances ). Neither the brokers nor the insurers shall have any rights of recourse against the Ship after her delivery to the Buyer, or against the Buyer or any other of the protected parties at any time whatsoever, or any rights to make any deduction, set-off or other withholding whatsoever from or against any sum payable to the Buyer or its assignees in connection with the Insurances. If, by the time when steel work for the first hull section of the Ship has been completed, the Builders insurance arrangement have been consolidated with the insurance arrangements of the AKER YARDS Group, then the Builder may propose an alternative policy based on the AKER YARDS Group standard terms for approval by the Buyer; such approval not to be unreasonably withheld or delayed. |
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2.2 | The amount of the Insurances shall be not less than (i) the actual value of the Ship as built from time to time, and (ii) the insured value, as declared by the Buyer, of all Buyers Supplies from time to time taken into the custody of the Builder or any of its Subcontractors, and whether or not such Supplies are built into or installed on or in the Ship. | |
2.3 | All Insurances shall name the Builder as the assured party and the Buyer as the co-insured party for their respective interests. The Insurances shall contain loss payable provisions reasonably acceptable to the Buyer. | |
2.4 | All Insurances shall provide that there shall be no recourse against the Ship after her delivery to the Buyer, or against the Buyer or the Buyers assignees for the payment of any premiums or commissions and that no cancellation of the Insurances, for any reason whatsoever, shall become effective unless and until fourteen (14) days prior written notice has been given by the relevant brokers or insurers to the Buyer. | |
2.5 | Within five (5) days after steelwork for the first hull section of the Ship has been completed the Builder shall supply the Buyer with an original cover note and all related documents specifying the terms of the Insurances and security. | |
2.6 | If at any time there is: |
(i) | any lapse in the insurance coverage which the Builder is required to arrange under this Clause 2 and such lapse is not corrected within seven (7) days, the Buyer may effect replacement coverage at the Builders expense; or | ||
(ii) | any failure by the Builder to pay any premiums due in respect of the Insurances and such failure is not corrected within seven (7) days, the Buyer may pay the same and recover the relevant payment(s) from the Builder. |
3. | LOSS OR DAMAGE | |
3.1 | In the event of any partial loss of the Ship before delivery: |
(i) | the loss shall be made good by the Builder as soon as reasonably possible, the Delivery Date shall be extended in accordance with Clause 1 in Article 5 ( provided that the cause of the partial loss is excused under that Clause) and the partial loss proceeds referable to the Ship and/or Parts (other than Buyers Supplies) subject to the partial loss shall be applied by the Builder in making good the partial loss in accordance with this Contract, the Plans and the Specification; and | ||
(ii) | the partial loss proceeds referable to any Buyers Supplies subject to the partial loss shall be paid to the Buyer. |
3.2 | In the event of the total loss of the Ship before delivery, either the Builder or the Buyer shall be entitled to terminate this Contract by written notice to the other, such notice to be delivered within thirty (30) days after the date (the Determination Date ) on which it is determined that the Ship has become a total loss pursuant to Clause 3.5 below. |
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3.3 | If, following the total loss of the Ship, neither party terminates this Contract pursuant to Clause 3.2, the Builder shall receive all total loss proceeds apart from those referable to any Buyers Supplies subject to the total loss, which shall be paid to the Buyer and thereafter the Builder shall proceed with the building of the Ship in accordance with this Contract and the Delivery Date shall be extended by agreement of the parties. |
3.4 | If there is a total loss of the Ship before delivery, then:- |
(i) | if either party elects to terminate this Contract pursuant to Clause 3.2, the Builder shall within ninety (90) days from (and including) the Determination Date pay to the Buyer an amount equal to the sum of: |
(a) | all payments on account of the Contract Price previously made by the Buyer to the Builder under this Contract together with interest thereon at the Relevant Rate calculated from the date on which the Builder received each such payment to the date on which the reimbursement is received by the Buyer, and | ||
(b) | the Buyers Supply Costs in respect of any Buyers Supplies which are subject to the total loss or which cannot be removed in sound condition from the Ship, the Shipyard or other place(s) where they are stored and returned to the Buyer, free from all encumbrances whatsoever, and in addition the Builder will return to the Buyer all Buyers Supplies which have not been lost or damaged and which can be removed in sound condition from the Ship, the Shipyard and other place(s) where they are stored, whereupon this Contract shall be deemed to have been rescinded subject and without prejudice to the rights, duties, liabilities and obligations of either party under any other of the express provisions of this Contract (including, without limitation, Articles 9 to 14) and the Builder alone shall be entitled to receive and retain any and all amounts recoverable under the Insurances; or |
(ii) | if neither party terminates this Contract pursuant to Clause 3.2, then Clause 3.1 of this Article 4 shall apply. |
3.5 | A total loss shall be deemed to have occurred: |
(i) | if it consists of an actual loss, on the actual date of loss; or | ||
(ii) | if it consists of a constructive or compromised or arranged or agreed total loss, on the date on which notice of abandonment of the Ship is given to her insurers. |
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1. | EXTENSION OF TIME FOR WORK | |
1.1 | If the Builder gives notice as provided in Clauses 2.1, 2.2 and 2.3 the Builder shall be entitled to an extension of the Delivery Date but only if the Builder can demonstrate clearly that: |
(i) | there is a specific contingency which is delaying or will delay Work in the updated critical path of delivery of the Ship for more than one Working Day; | ||
(ii) | such delay is being caused or will be caused by one or more of the contingencies specified in Clause 1.3; | ||
(iii) | it has used and is continuing to use all reasonable efforts to avoid, prevent, minimise and overcome the actual delay in delivery of the Ship provided that such reasonable efforts do not jeopardise the Builders contracted obligations for the construction of other ships; and | ||
(iv) | the contingency in question occurred before the Delivery Date. |
provided that (a) the length of any such extension shall be the number of days by which the Builder can demonstrate clearly that completion of the Work and delivery of the Ship actually will be delayed by such contingency(ies) and (b) delays attributable to two (2) or more concurrent contingencies shall not be aggregated or counted more than once. | ||
1.2 | The Builder shall at all times have the burden of demonstrating clearly each of the matters required to be established by this Clause 1 and in the event that it is not possible for it to demonstrate clearly whether, or to what extent, any delay in delivery is caused by any contingency which is excused by the express provisions of this Clause 1, the Builder shall not be entitled to any extension of the Delivery Date. | |
1.3 | The Builder shall be entitled to an extension of the Delivery Date, as provided in Clause 1.1, for delay caused by one or more of the following contingencies: |
(i) | by legislation or other action by or on behalf of any government (or any agency or other authority of such government) prohibiting or otherwise preventing the Builder from proceeding with the Work; | ||
(ii) | by war or warlike events (including such acts of terror, sabotage or other hostile acts or preparations therefore as are beyond the Builders control) involving any country which is relevant to the building of the Ship; | ||
(iii) | by extraordinary weather conditions not included in normal planning; | ||
(iv) | by such strikes, lockouts and other labour disturbances of or directly affecting the Builder or those of its Subcontractors who supply important Parts (such as engines, major castings, or other major turn-key Parts) as are beyond the Builders control provided that the Builder shall not be entitled to any extension of the Delivery Date for delays resulting from strikes, lock outs or other labour |
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disturbances of its personnel occurring after the date falling 90 (ninety) days before the Delivery Date; | |||
(v) | by such accidents, explosions, fires, disruptions of power supplies and other similar occurrences as are beyond the Builders control; | ||
(vi) | by the non-compliant or late delivery to the Builder of any Parts, or the non-compliant or late performance of the Builders Subcontractors provided that the late delivery or performance resulted from causes which would entitle the Builder (if applying to it) to an extension of the Delivery Date under this Clause 1 and provided that the Builder proves that it has exercised due diligence (a) in contracting for such Parts and with such Subcontractors, (b) in the performance of any acts required of it with respect to such Parts or Subcontractors, (c) in monitoring the acts and circumstances of such Subcontractors, and (d) in expediting deliveries or performance under the Builders purchase or subcontracts or procuring equivalent substitute performance in the event of the late delivery of such Parts or the under-performance in such purchase or subcontracts; or | ||
(vii) | to the extent not covered by any of paragraphs (i) to (vi) of this Clause 1.3, by such Acts of God as could not reasonably be foreseen or provided against by the Builder. |
1.4 | Notwithstanding anything to the contrary in this Clause 1, the Builder shall not be entitled to any extension of the Delivery Date for: |
(i) | any delay resulting from a contingency or other cause of delay which has itself been caused by the acts, omissions, neglect or other default of the Builder; | ||
(ii) | any delay resulting from a contingency or other cause of delay in existence as of the Effective Date; or | ||
(iii) | any delay resulting from a contingency or other cause of delay, which was or reasonably should have been foreseen or anticipated by the Builder by reason of facts which were, or after reasonable enquiry should have become, known to the Builder as of the Effective Date; or | ||
(iv) | any delay resulting from contingencies or other causes of delay which reasonably could have been avoided by the Builder; | ||
(v) | any delay resulting from the non-compliant or late performance or other default of a Subcontractor, if such delay results from a contingency or other cause of delay (a) which is in effect, published and announced as of the date of the award of the relevant purchase contract or subcontract, or (b) which would not entitle the Builder (if applying to it) to an extension of the Delivery Date under this Clause 1; or | ||
(vi) | any delay due to increased labour or material costs or other financial stress of the Builder or any Subcontractors; |
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(vii) | any delay resulting from a contingency or other cause of delay occurring after the Delivery Date. |
In this Clause 1.4 references to the Builder shall include the Builder and all officers, employees, workmen and other representatives of the Builder. | ||
1.5 | The Builder may claim an extension of the Delivery Date for and equivalent to any actual delay to Work in the updated critical path of delivery of the Ship if such delay is caused by any failure on the part of the Buyer to perform its obligations under this Contract (unless any such failure is caused or excused by any failure on the part of the Builder to perform any of its obligations under this Contract) provided that the Builder gives written notice of such claim to the Buyer within five (5) days after the date on which the Builder first had knowledge of the cause of the delay. If the parties do not agree upon the length of the extension claimed by the Builder, the Builders entitlement to claim extension of the Delivery Date shall be determined as a Dispute pursuant to Article 13 | |
2. | DELAY NOTICES | |
2.1 | The Builder shall give written notice to the Buyer of a contingency pursuant to Clause 1.3 as soon as practicable and no later than five (5) days after the date on which the Builder first has knowledge of such contingency and in such notice the Builder shall describe the cause of the delay, the date of commencement (or first occurrence) of the cause, its expected duration and its expected effect on Work in the updated critical path of delivery of the Ship. | |
2.2 | The Builder will provide the Buyer with regular written status reports (at such reasonable intervals as the Buyer may request) with respect to any delay in respect of which the Builder has given notice pursuant to Clause 2.1 and as to the steps being taken (and planned) by the Builder to minimise and overcome any actual delay in delivery of the Ship. | |
2.3 | Within five (5) days after any cause of delay set forth in Clause 1.3 has ceased to exist, the Builder shall notify the Buyer of such cessation and give the Buyer a written statement of the actual or estimated delay in the completion of the Work resulting from such cause together with such detailed information and documentation as is then available to it justifying such extension, and any such detailed information and documentation thereafter becoming available to the Builder shall be promptly be given to the Buyer. | |
2.4 | On the basis of the notices, reports, statements and information given to the Buyer by the Builder relating to any actual or estimated delay in delivery (and such further information and documentation as the Buyer may reasonably request), the Buyer and the Builder shall confer and attempt to agree upon the number of days by which the Delivery Date shall be extended provided that if the Buyer and the Builder cannot so agree within thirty (30) days after the completion of any such conference, the extension of the Delivery Date (if any) shall be determined as a Dispute pursuant to Article 13. |
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2.5 | The extension of the Delivery Date provided for in this Article shall be the only remedy for delay to which the Builder shall be entitled (subject and without prejudice to the express provisions of Article 6, Clauses 1.4 and 1.5) and, by way of illustration but not limitation, the Builder shall not be entitled to damages or any increase in the Contract Price or other compensation for delay. |
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1. | TESTS | |
1.1 | At its sole and direct risk and expense, the Builder shall subject the Ship and specified Parts to the tests in order to ascertain whether the Ship and such Parts have been completed in full accordance with this Contract, the Plans and Specification. In connection with the sea trials tests, the Builder shall provide at its own expense the required quantities of ballast water (if any), fresh water, fuel oil, lubricating oil, greases and other consumables as well as the crew required to ensure safe navigation. By the time of commencement of the tests, the Ship shall have been substantially completed so as to enable the tests to be performed as specified. | |
1.2 | The Buyer shall be entitled to have the Supervisor and his team present at all tests and the Builder shall give the Supervisor: |
(i) | two (2) Working Days prior written notice of all tests (except sea trials tests) (a) designated for such notice by the Supervisor following delivery by the Builder of the Schedule of Tests and (b) scheduled to take place on week-ends or other non-Working Days; and | ||
(ii) | one (1) Working Days prior written notice of all other tests (except sea trials tests). |
1.3 | The Builder shall give the Supervisor fifteen (15) Working Days estimated, and seven (7) Woking Days definite, prior written notice of the time and the place for the sea trials tests provided that only one (1) days prior written notice need be given to the Supervisor with respect to retrials at sea conducted within three (3) days after completion of a previous sea trial test at or upon which the need for such retrial was determined. |
1.4 | The course to be followed during the sea trials tests shall be determined by the Builder but shall be [**] [Confidential Treatment]. If the weather conditions on the date specified for the sea trials tests are (in the reasonable opinion of the Builder) so unfavourable that they would prevent the Builder from carrying out such tests in a proper manner then the same shall take place on the first available day thereafter that weather conditions permit. If, during the sea trials tests unexpected changes in the weather occur which, in the reasonable opinion of the Builder, are such as to prevent the continuation of such tests in a proper manner then such tests shall be discontinued and postponed until the next following favourable day unless the Buyer shall (in its option) agree in writing to accept the Ship on the basis of the tests made. If commencement of the sea trials tests is postponed or such tests are discontinued pursuant to the provisions of this Clause 1.4 and the aggregate total delay to such tests exceeds twenty four (24) hours, then the Delivery Date shall thereafter be postponed by the period of delay in excess of twenty four (24) hours. |
1.5 | The failure of the Supervisor to be present at any test, after due notice, shall be deemed to be a waiver of the Supervisors right to be present at the relevant test and the Buyer shall be obliged to accept the results of such test on the basis of a certificate of the Builder and the Classification Society that the Ship and specified Parts, after due |
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completion of the tests, were found to have been completed in full accordance with this Contract, the Plans and the Specification provided that if the Supervisors failure to attend any test, after due notice, is due to an event or combination of events outside the Supervisors control which arose not later than forty-eight (48) hours before commencement of the relevant test and the Buyer or the Supervisor so notifies the Builder before commencement of the test in question, then the test shall be postponed until the Supervisor (or substitute) is able to attend or the expiration of forty-eight (48) hours from the time at which the originally scheduled test was due to commence, whichever first occurs and the Delivery Date shall be postponed by the period for which commencement of the test is delayed. |
1.6 | All tests to which the Supervisor has, by endorsement of the Schedule of Tests, indicated his wish to attend but which are conducted without due notice to the Supervisor shall be reconducted by the Builder on due notice to the Supervisor at the sole risk and expense of the Builder. | |
1.7 | Within three (3) Working Days after completion of the tests, the Builder shall notify the Buyer in writing of the results of the tests and shall, when appropriate, confirm to the Buyer that the Ship complies with the requirements of this Contract, the Plans and the Specification. | |
1.8 | Within three (3) Working Days after its receipt of the Builders notice under Clause 1.7, the Buyer shall notify the Builder in writing of its technical acceptance of the Ship or its technical rejection of the Ship. If the Buyer notifies the Builder of its technical rejection of the Ship, the Buyers notice shall specify the respects in which, in the Buyers opinion, the Ship fails to comply with this Contract, the Plans and Specification. The Builder acknowledges and agrees that the Buyer may reject the Ship not only for defects discovered during or as a result of tests but also defects discovered and previously notified to the Builder that have not yet been remedied. | |
1.9 | If and to the extent that the Builder accepts the Buyers technical rejection of the Ship, the Builder shall at its sole risk and expense forthwith take all such steps as may be necessary to remedy the defects and all such tests as may be necessary to demonstrate to the Buyer, the Classification Society and the Regulatory Authorities the full and final remedy of such defects. When appropriate, the Builder shall notify the Buyer in writing that the necessary remedial steps and tests have been completed and that the Ship complies with the requirements of this Contract, the Plans and the Specification | |
1.10 | Within three (3) Working Days after its receipt of the Builders notice under Clause 1.9, the Buyer shall notify the Builder in writing of its technical acceptance of the Ship or its technical rejection of the Ship. If the Buyer notifies the Builder of its technical rejection of the Ship, the Buyers notice shall specify the respects in which, in the Buyers opinion, the Ship still fails to comply with this Contract, the Plans and Specification in which case the provisions of Clause 1.9 and 1.10 shall again apply. | |
1.11 | If the Buyer fails to notify the Builder of its technical acceptance or technical rejection of the Ship together with its reasons for any rejection, within the time periods specified in Clauses 1.8 and 1.10 above, the Buyer shall be deemed to have technically accepted the Ship. |
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1.12 | The above process shall be repeated as often as necessary until the earlier of the time at which the Buyer notifies the Builder in writing of its technical acceptance of the Ship, and the valid and lawful termination of this Contract by either party. If there is any difference of opinion between the Builder and the Buyer as to whether the Ship complies with the requirements of this Contract, the Plans or the Specification either party may require that the difference of opinion be treated as a Dispute to be resolved in accordance with the provisions of Article 13. | |
1.13 | The Buyers technical acceptance of the Ship shall be final and binding on the Buyer insofar as compliance of the Ship (as she is then built and equipped) with this Contract, the Plans and the Specification as demonstrated by the tests is concerned (with the exception of any outstanding defects or disputed defects) and shall preclude the Buyer from refusing formal tender of the Ship for delivery provided that : |
(i) | the Builder then maintains the Ship, as technically accepted by the Buyer, in full accordance with this Contract, the Plans and the Specification; and | ||
(ii) | the Builder fully complies with all preconditions and other requirements for delivery as provided in this Contract. |
1.14 | For the avoidance of doubt, all time used and costs expended in removing or otherwise remedying any defects, in making any necessary alterations and in carrying out all necessary tests and retests shall be for the Builders account and shall not result in any extension of the Delivery Date or increase in the Contract Price. |
1.15 | If: (i) the Ship has been completed in full accordance with this Contract, the Plans and Specification apart from defects of a minor nature (each a minor defect ) meaning defects that in and of themselves, and also in the process of being remedied: (a) do not and will not adversely affect the seaworthiness of the Ship; or (b) do not and will not prevent the unrestricted use of the Ship in its intended service and purpose as described in the Plans and the Specification; or (c) do not and will not prevent the commercial functional use of any of the Ships passenger accommodation or any of the areas designated in the Specification as public spaces, or in any other way adversely affect the comfort or safety of the Ships passengers; or (d) do not and will not affect the safety of the Ships crew or their ability to carry out their duties in a safe working environment and with appropriate accommodation; or (e) do not and will not adversely affect the operational efficiency of the Ship; or (f) do not and will not involve any condition, qualification, recommendation, reservation or restriction in relation to any certificate issued (or to be issued) by the Classification Society or any Regulatory Authority which in the opinion of the Buyer (acting in good faith and being reasonable) is or could be material in a commercial or technical sense; and (ii) the Builder undertakes in writing to remedy defects at the Builders entire risk and expense, without any interruption to the Ships service to passengers, and with all convenient speed in accordance with a remedial plan and timetable approved by the Buyer (acting in good faith and being reasonable), then the Buyer shall not be entitled to withhold its technical acceptance of the Ship. From the time when the first Work inspections and approvals are to be made and given on behalf of the Buyer, the Builder and the Buyer shall jointly maintain a written record (the Defects List ) in the form of a list of defects (including minor defects) noted on |
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behalf of the Buyer. The Builder and the Buyer, each acting reasonably and in good faith, shall update the Defects List at regular intervals to reflect the addition and removal of defects. |
1.16 | All defects in the Ship at the time of her final acceptance, whether or not recorded in the Defects List, shall qualify as defects covered by the Builders guarantee and shall be remedied pursuant to Clause 2 of Article 7. However, if before delivery and final acceptance of the Ship under Clause 1.4 of Article 7, a duly authorised representative of the Buyer expressly in writing waives its right to require the Builder to remedy a particular defect recorded in the Defects List, or accepts the Builders remedy of a particular defect, then the defect in question will be outside the scope of the Builders guarantee unless it recurs during the Guarantee Period notwithstanding the Builders remedial works before of after delivery or a new defect arises in the same Part. | |
1.17 | The tests that are to be carried out after delivery shall be performed in the manner, under the conditions and in accordance with the timetable provided for in the Specification. Defects discovered during such tests shall qualify as defects covered by the Builders guarantee and shall be remedied pursuant to Clause 2 of Article 7. | |
2. | LIQUIDATED DAMAGES | |
2.1 | The Builder agrees that certain deficiencies and certain delays in the delivery of the Ship shall oblige it to pay to the Buyer, by way of agreed and final liquidated damages and not as penalties, the compensation provided for in this Clause 2. | |
2.2 | The speed of the Ship shall be demonstrated and tested during the sea trials tests under the conditions described in [**] [Confidential Treatment] of the Specification. | |
2.3 | (A) If the Builder before delivery fails to remedy any deficiency in the Guaranteed Service Speed or GSS, the Builder shall have no liability to the Buyer if the actual speed of the Ship as determined during the final sea trials tests is up to [**] [Confidential Treatment] of a knot below GSS but commencing with a deficiency of more than [**] [Confidential Treatment] of a knot below the GSS the Builder shall pay liquidated damages to the Buyer as follows for a speed between: |
(i) | [**] [Confidential Treatment] knots, a total sum of [**] [Confidential Treatment]; | ||
(ii) | [**] [Confidential Treatment] knots, a total sum of [**] [Confidential Treatment]; and | ||
(iii) | [**] [Confidential Treatment] knots, a total sum of [**] [Confidential Treatment]; |
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2.4 | The fuel consumption of each main engine of the Ship shall be demonstrated and tested in tests conducted at the engine manufacturers test bed under the conditions described in [**] [Confidential Treatment] of the Specification. | |
2.5 | If the Builder before delivery fails to remedy any deficiency in the fuel consumption of any of the Ships main engines, the Builder shall have no liability to the Buyer if such fuel consumption as determined during the final tests is more than the Guaranteed Fuel Consumption or GFC provided such excess is not more than [**] [Confidential Treatment] over the GFC but commencing with an excess of more than [**] [Confidential Treatment] in actual fuel consumption the Builder shall pay liquidated damages to the Buyer for each such engine in the sum of [**] [Confidential Treatment] for each full [**] [Confidential Treatment] (provided that if the Builders back to back position against its against the engine supplier entitles the Builder to claim fractions of a % calculated in proportion, the Buyer shall have the same entitlement against the Builder under this provision) increase in fuel consumption above such [**] [Confidential Treatment] level up to a maximum of [**] [Confidential Treatment] over the GFC provided that if the fuel consumption is more than [**] [Confidential Treatment] above the GFC, the Buyer may, at its option, accept the Ship upon payment by the Builder of liquidated damages for such deficiency of [**] [Confidential Treatment] or reject the relevant engine. | |
2.6 | The deadweight capacity of the Ship shall be demonstrated by the Builder in the specified deadweight capacity test under the conditions described in [**] [Confidential Treatment] of the Specification. | |
2.7 | If the Builder fails to remedy any deficiency in the Ships deadweight capacity before delivery, the Builder shall have no liability to the Buyer if the actual deadweight capacity of the Ship as determined in accordance with the Specification is less than [**] [Confidential Treatment] metric tons below the Guaranteed Deadweight capacity but the Builder shall pay liquidated damages to the Buyer in the sum of [**] [Confidential Treatment] for each full metric ton of such deficiency being more than [**] [Confidential Treatment] metric tons up to a maximum deficiency of [**] [Confidential Treatment] metric tons at a draft of not more than [**] [Confidential Treatment] metres even keel provided that if the actual deadweight deficiency at a draft of not more than [**] [Confidential Treatment] even keel is more than [**] [Confidential Treatment] metric tons, the Buyer may, at its option, accept the Ship against the Builders payment of liquidated damages in the amount of [**] [Confidential Treatment] for such deficiency or reject the Ship and terminate this Contract pursuant to Clause 2 in Article 9. | |
2.8 | The guaranteed cabin capacity of the Ship shall be as defined in [**] [Confidential Treatment] of the Specification and no change shall be made to such cabin capacity without the Buyers prior written consent. | |
2.9 | If the actual number of either the passenger or crew cabins is lower than the number of passenger and crew cabins as defined in [**] [Confidential Treatment] of the Specification, the Builder shall pay liquidated damages to the Buyer in the sum of [**] [Confidential Treatment] |
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[**] [Confidential Treatment] for each passenger or crew cabin deficiency. If any such cabin deficiency: |
(a) | exceeds [**] [Confidential Treatment] passenger cabins the Buyer may, at its option, accept the Ship against the Builders payment of liquidated damages in the amount of [**] [Confidential Treatment] euros for such deficiency or reject the Ship and terminate this Contract pursuant to Clause 2 in Article 9; and/or | ||
(b) | exceeds [**] [Confidential Treatment] crew cabins the Buyer may, at its option, accept the Ship against the Builders payment of liquidated damages in the amount of [**] [Confidential Treatment] euros for such deficiency or reject the Ship and terminate this Contract pursuant to Clause 2 in Article 9. |
2.10 | The columns under the heading of Column A in Schedule 7 describe: the maximum sound and vibration levels and related tolerances and graces defined by the Classification Society notation DNV Comf V (1) (the S & V Notation ); and the application of the S & V Notation to and between the suites, cabins and other public spaces on board the Ship (the spaces ) referred to in such columns. | |
2.11 | The Builder shall carry out the Works so that, at delivery, the Ship achieves the S&V Notation. | |
2.12 | If any of the sound and vibration levels in the spaces as tested and measured in accordance with the testing and measurement procedures referred to in [**] [Confidential Treatment] of the Specification exceed any of the sound or vibration level or space number or area tolerances and graces defined by the S & V Notation, before the Delivery Date the Builder shall take all such remedial steps and make all such further tests and measurements as may reasonably be required (i) to reduce the levels, numbers and areas to within the applicable S & V Notation tolerances and graces referred to in the columns under the heading of Column A in Schedule 7, and (ii) to demonstrate the complete and permanent correction of the relevant deficiencies. | |
2.13 | If the Builder is unable to reduce the relevant levels, numbers and areas to within the applicable S & V Notation tolerances and graces, and to demonstrate the complete and permanent correction of the relevant deficiencies, the Builder shall be obliged to pay liquidated damages to the Buyer at the applicable rates per space specified in the Liquidated Damage columns under the heading of Column B in Schedule 7 for every space in which the measured levels of sound or vibration exceed the peak level for such space specified in the Limit column under the heading of Column B of Schedule 7. | |
2.14 | If, after taking into account the applicable S & V Notation space, number and area tolerances and graces, the measured levels of sound or vibration in any space exceed the peak level for such space specified in the Limit column under the heading of Column B of Schedule 7 and the peak number and area allowance specified in the Number(s) and Area columns under the heading of Column B of Schedule 7 then the Buyer may, at its option, accept the Ship against the Builders payment of the aggregate total liquidated damages for all sound and vibration deficiencies calculated in accordance with Schedule |
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7 or the Buyer may reject the Ship and terminate this Contract pursuant to Clause 2 in Article 9. |
2.15 | For the avoidance of doubt, the parties agree that the tolerances referred to in the columns under the heading of Column B in Schedule 7 shall be read and applied as overlapping with and not as additional to the tolerances and graces defined by the S & V Notation in the columns under the heading of Column A in Schedule 7. | |
2.16 | The Buyer intends to arrange for the Ships first cruise with fare paying passengers to be held on the [**] [Confidential Treatment]. The Builder: |
(i) | acknowledges that it is imperative for the Ship to be ready at the time, and in the condition, provided for in this Contract so as to enable the Buyer to fulfil its commitments in relation to the Ships first cruise; and | ||
(ii) | agrees to do all it can to assist the Buyer to fulfil its commitments in relation to the Ships first cruise. |
2.17 | If delivery of the Ship is not made on the Compensation Date, the Buyer will suffer loss and damage (including reputational damage) in amounts which are extremely difficult to quantify in advance but it is agreed by the Builder and the Buyer that the per day sums set out in paragraphs (i) to (iv) below represent a genuine and reasonable estimate of the Buyers loss and damage for each day of delay in delivery of the Ship beyond the Compensation Date and that they constitute the final compensation payable by the Builder to the Buyer for delay in delivery of the Ship beyond the Compensation Date. If delivery of the Ship is delayed beyond the Compensation Date, the Builder shall be obliged to pay to the Buyer by way of the liquidated damages for each calendar day (or pro-rata for each part of a calendar day) at the per rates set out at paragraphs (i) to (iv) below from (and including) the Compensation Date until delivery of the Ship is actually made or this Contract is terminated:- |
(i) | if the Builder shall have given to the Buyer less than or equal to thirty (30) days notice of the delay in delivery prior to the Delivery Date: |
(a) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(b) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(c) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(d) | for the [**] [Confidential Treatment] the rate shall be [**] [Confidential Treatment] per day; |
(ii) | if the Builder shall have given to the Buyer more than thirty (30) days but less than or equal to ninety (90) days notice of the delay in delivery prior to the Delivery Date: |
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(a) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(b) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(c) | for the [**] [Confidential Treatment] days the rate shall [**] [Confidential Treatment] per day; | ||
(d) | for [**] [Confidential Treatment] the rate shall be [**] [Confidential Treatment] per day; |
(iii) | if the Builder shall have given to the Buyer more than ninety (90) days but less than or equal to one hundred and eighty (180) days notice of the delay in delivery prior to the Delivery Date: |
(a) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(b) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(c) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(d) | for [**] [Confidential Treatment] the rate shall be EUR [**] [Confidential Treatment] per day; |
(iv) | if the Builder shall have given to the Buyer more than one hundred and eighty (180) days notice of the delay in delivery prior to the Delivery Date: |
(a) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(b) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; | ||
(c) | for the [**] [Confidential Treatment] days the rate shall be [**] [Confidential Treatment] per day; |
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2.18 | In no event shall the aggregate of final liquidated damages payable by the Builder to the Buyer in accordance with this Clause 2 exceed [**] [Confidential Treatment]. | |
2.19 | The amounts of all liquidated damages payable under this Clause 2 shall be determined and paid to the Buyer on delivery of the Ship or when applicable on termination of the Contract. | |
2.20 | The parties acknowledge and agree that: |
(i) | the liquidated damages provided for in the sub-clauses of Clause 2 in respect of speed, deadweight, fuel consumption, sound and vibration, and delay are cumulative and not exclusive so that, when applicable, the Buyer may claim under one or more of such sub-clauses in respect of the same event; and | ||
(ii) | subject always and without prejudice to the guarantee provisions in Article 7 Clause 2 and to the termination provisions in Article 9 Clause 2, the liquidated damages provided for in this Clause 2 shall be the only compensation recoverable by the Buyer in respect of the breaches of Contract to which they relate and, in particular, the Builder shall not be liable for any loss of profit, loss of revenue or other consequential losses resulting from such breaches. |
2.21 | The Builder hereby irrevocably and unconditionally waives all rights whatsoever to claim that the any of the entitlements intended to be conferred on the Buyer to claim liquidated damages under any of the express provisions of this Contract are in any manner or to any extent void, invalid or unenforceable as being in the nature of penalties. However, if for any reason the enforcement of any of the Buyers claims for liquidated damages is prohibited by any applicable law or if any express provision of this Contract relating to liquidated damages is rendered void, invalid or enforceable by applicable law, the Builder shall nonetheless be liable to pay general damages in respect of the relevant breach of its obligations under this Contract provided that the Builders liability in such circumstances shall not exceed the liability that the Builder would have had to pay liquidated damages for such breach under the express provisions of this Contract. |
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1. | DELIVERY AND ACCEPTANCE | |
1.1 | The Ship shall be ready for delivery at the Shipyard on the 31 May 2010 (the Delivery Date ). The Ship shall not be delivered before this date without the express written approval of the Buyer. When: |
(i) | the Builder has completed the Work in compliance with this Contract, the Plans and the Specification; | ||
(ii) | all tests have been performed and completed in accordance with this Contract, the Plans and the Specification, the parties have agreed the Defects List, and the remedial plan and timetable referred to in Article 6, Clause 1.15; | ||
(iii) | the Ship (a) (in accordance with the Builders usual practices and to their usual standards for ships of this type) has been cleaned and prepared so that she is ready to take on a full complement of passengers, officers, crew and staff, and (b) is in all other respects ready to enter service as a passenger cruise ship; | ||
(iv) | the Builder has removed from the Ship all unused construction materials and debris, and otherwise left the Ship in a clean and safe ready for sea condition, |
the Builder shall tender the Ship for delivery to the Buyer safely afloat alongside a safe and accessible quay at the Shipyard where there must be sufficient water for the Ship always to remain afloat and from where there must be direct, free, unimpeded, safe and lawful access to international waters provided that the Builder shall have given to the Buyer not less than 15 (fifteen) Working Days definite, prior written notice of delivery. | ||
1.2 | The Builder shall deliver the Ship to the Buyer with full title guarantee, and free and clear of all encumbrances (including, without limitation, all Mortgages) whatsoever. | |
1.3 | On delivery of the Ship the Builder shall also deliver the following documents (together, the Delivery Documents ): |
(i) | a Protocol of Delivery and Acceptance in the form of Schedule 2 confirming delivery of the Ship to, and acceptance and taking possession of the Ship by, the Buyer pursuant to this Contract, executed in two original counterparts by the Builder and the Buyer and stating the date and (local) time of such delivery and acceptance; | ||
(ii) | a declaration of warranty by the Builder in a mutually agreed form confirming that the Ship is delivered to the Buyer free and clear of all encumbrances whatsoever (including, without limitation, all Mortgages and other obligations and all liabilities of the Builder arising from the financing, the construction or the operation of the Ship for the purposes of the tests or otherwise before delivery) and that the Ship is absolutely free of all burdens in the nature of imposts, taxes or other charges imposed by the national, provincial, local or port authorities of France; |
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(iii) | a detailed inventory showing the machinery and equipment installed on the Ship and the spares, stores and other consumable items delivered with the Ship; | ||
(iv) | the makers certificates, Subcontractors instruction books, and all of the Classification Society, trading and other certificates (each free of conditions, qualifications, recommendations, reservations and restrictions) required to be supplied upon delivery of the Ship pursuant to this Contract and the Specification, and the Buyer will accept provisional certificates provided that : (a) they do not to any extent impair the Buyers ability to register, finance, insure or operate the Ship in its intended service; and (b) the Builder undertakes to deliver fully compliant permanent certificates as soon as they are available from the relevant issuing authority; | ||
(v) | a protocol showing the results of the tests; | ||
(vi) | a non-registration or deletion certificate issued by the competent French authorities; | ||
(vii) | a commercial invoice for the Ship and all other amounts payable by the Buyer on delivery; | ||
(viii) | a builders certificate in a form acceptable to the Buyer, notarised and legalised in accordance with the Buyers instructions, and such other written instruments as may be strictly necessary, to confirm that full and clean title in the Ship has been vested in the Buyer and to enable the Buyer to register the Ship under the Flag State; | ||
(ix) | a full set of the drawings, plans and other construction documents provided for in the Specification; | ||
(x) | if required by the Buyers financiers, such documents as may be necessary to prove the authority of the parties respective representatives to sign the documents to be executed on behalf of the Builder and the Buyer in connection with delivery of the Ship. |
1.4 | Acceptance of the Ship by the Buyer shall be accomplished by: |
(i) | the signature by the Buyer and the Builder of two (2) original counterparts of the Protocol of Delivery and Acceptance; and | ||
(ii) | payment by the Buyer to the Builder of that part of the Contract Price and all other sums that the Buyer is required to pay upon delivery of the Ship pursuant to the provisions of this Contract. |
1.5 | The Buyer shall be afforded five (5) days free of any wharfage or any other charge, and up to three (3) further days at the usual wharfage fee charged by the relevant port authority, within which to remove the Ship from her point of delivery. |
1.6 | The following consumables remaining on board at delivery of the Ship shall be jointly inventoried by the Builder and the Buyer, and the Buyer shall pay for them at the Builders actual cost price: lubricating oils in storage tanks, fresh water, diesel oils and |
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fuel oils. The Builder shall remove all waste-oil and sludge from the Ship at the Builders risk and expense prior to delivery. The Buyer shall not be obliged to pay for the Ships ballast. |
1.7 | Acceptance of the Ship and the related Delivery Documents by the Buyer under this Clause 1: |
(i) | shall signify that the Buyer has taken possession and the risk of loss of the Ship and the related Delivery Documents as of the time and date set out in the Protocol of Delivery and Acceptance and that the Builder may terminate the Insurances; and | ||
(ii) | shall not be deemed to constitute a waiver of or otherwise prejudice any of the Buyers rights under Clause 2 of this Article 7 with respect to any defect, whether known or unknown, and whether or not noted in any document delivered in connection with delivery and acceptance of the Ship, which may exist in the Ship at the time it is accepted by the Buyer, and any such defect may be reported to, and shall be remedied at the sole and direct risk and expense of, the Builder under the guarantee provided in Clause 2. |
1.8 | At the time of the Ships delivery to the Buyer under this Contract, the Buyer will register the Ship under the flag and laws of the Bahamas (the Flag State ), with Nassau as the Ships home port, and all fees and charges relating to such registration shall be for the account of the Buyer. | |
2. | GUARANTEE | |
2.1 | Subject to the express provisions of this Clause 2, the Builder guarantees the Ship and all Parts against all defects for the period of [**] [Confidential Treatment], (subject to any extension thereof as provided for in this Clause 2) from the date of the Ships actual delivery to the Buyer under Article 7, Clause 1.4 (the Guarantee Period ). | |
2.2 | In calculating the length of the Guarantee Period there shall be excluded any day(s) during which the Ship is prevented from entering or is taken out of service solely on account of any defect in the Ship or in any Part for which the Builder is responsible under this Clause 2. | |
2.3 | Where any defect in the Ship or any Part is remedied during or after the Guarantee Period, the Builders guarantee under this Clause 2 shall apply to such remedial Work for the longer of [**] [Confidential Treatment] from the date on which the remedial Work was completed and the end of the period specified in Clause 2.1 above so that the Guarantee Period for such items shall not exceed [**] [Confidential Treatment]. The [**] [Confidential Treatment] time limit shall apply to the Guarantee Period as calculated under the provisions of this Clause 2. | |
2.4 | If any remedial works made or agreed to be made by or on behalf of the Builder before, during or within 30 days after the Guarantee Period (or any extension thereof under this Clause 2) indicate any recurring defect (meaning any defect that requires two (2) or more |
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repairs, replacements or modifications due to the same cause), the Builder shall take the following steps as soon as reasonably possible: |
(i) | promptly perform a root cause analysis; and | ||
(ii) | ascertain the root cause of such recurring defect and the design modification or other remedial Work required to implement a full and final solution; and | ||
(iii) | remedy such recurring defect, and its root cause, in order to avoid a continuation or repetition of such recurring defect. |
If it is not possible for any defect covered by the Builders guarantee under this Clause 2 to be fully and finally remedied within the Guarantee Period defined above, both the Guarantee Period and the Builders guarantee obligations under this Clause 2 shall be deemed to be extended in respect of such defect until either the Builder has implemented a remedial solution or the Builder has made a commercial settlement with the Buyer which is (in either case) reasonably satisfactory to the Buyer. | ||
2.5 | The Builder shall not be responsible for the remedy of any defect if it is due to: |
(i) | perils of the sea, accident (subject to Builders responsibility under Clause 2.12), negligence (but excluding negligence on the part of the Builder), or improper maintenance or handling (including, without limitation, overloading) of the Ship or any Parts; | ||
(ii) | use of fuels or lubricants not recommended by the relevant manufacturer; or | ||
(iii) | normal wear and tear; | ||
(iv) | any fault in (or caused by) any Buyers Supplies which were properly (a) received, (b) handled, (c) installed or incorporated in, (d) stowed on, or (e) otherwise delivered with the Ship by the Builder in accordance with all of the requirements of this Contract, the Plans and the Specification; or | ||
(v) | subject to the other express provisions of this Clause 2, repairs carried out by anyone other than the Builder, its Subcontractors or other persons nominated or approved by the Builder. |
2.6 | The Buyer shall give written notice to the Builder as soon as possible and in any event within fourteen (14) days after the discovery of any defect for which a claim is made under this Clause 2 and, a copy of each such notice shall also be given to the guarantee engineer, who shall acknowledge receipt by his signature thereof. The Buyers notice shall give full details (so far as possible) as to the nature of the defect and the extent of any damage caused thereby. |
2.7 | Within thirty (30) days after the end of the first [**] [Confidential Treatment] referred to in Clause 2.1 as extended by the operation of Clause 2.2, the Buyer (in consultation with the guarantee engineer) will draw up, and send to the Builder, a list identifying every defect for which a claim which is existing on the last day of such period is to be made under this Clause 2 provided that this Clause 2.7 will not preclude |
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the Buyer from giving notice to the Builder of, and making claims in respect of, any defect which is covered by the Builders extended guarantee under Clause 2.3. |
2.8 | Each defect will be remedied by the Builder as soon as reasonably practicable (and the necessary remedial works shall be scheduled so as to minimise disruption to the Ships service and the availability of cabins, public rooms and areas, and other passenger facilities) or, at the Buyers option, under the instruction or supervision of the Builder at a suitably qualified shipyard or workshop selected by the Buyer and approved by the Builder (such approval not to be unreasonably withheld or delayed), and in each case the Builder shall bear and pay: |
(i) | the cost of all equipment, parts, tools and materials reasonably required and incurred to remedy the defect (including, without limitation, the cost of delivering the same to the selected shipyard or workshop by airfreight if the Buyer reasonably so requires, and the cost of returning any defective equipment, parts and materials); | ||
(ii) | the cost of all labour reasonably required and incurred to remedy the defect including, without limitation, the expenses of independent contractors in travelling to the Ship; | ||
(iii) | the cost of any necessary underwater inspection of the Ship by divers; and | ||
(iv) | where the Ship is drydocked exclusively on account of the need to remedy any defect in the Ships external underwater parts at any time before the Ships first scheduled drydocking after delivery (provided that the remedy of such defect cannot reasonably be postponed until the Ships first scheduled drydocking), the drydocking costs and the costs of remedying any defect that is covered by the Builders guarantee obligations under this Clause 2. |
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2.9 | At the Buyers request after final completion of the remedial works to be made or paid for by the Builder under this Clause 2 in respect of a particular aspect of the Work or any Part, the Builder will: |
(i) | assign to the Buyer, to the fullest extent possible and without any charge to the Buyer, that part of every contractual warranty or guarantee given by any Subcontractor with respect to the particular aspect of the Work or Part which extends beyond the Guarantee Period or which is otherwise more favourable to the Buyer than the guarantee of the Builder under this Clause 2; or | ||
(ii) | if it is not possible fully and effectively to assign the relevant part of any such contractual warranty or guarantee, hold and enforce the relevant contractual warranty and guarantee as trustee and agent for the Buyer and promptly account to the Buyer for all monies received in or pursuant to the holding or enforcement of any such contractual warranty or guarantee. |
2.10 | The Builder shall, at its sole risk and expense (except for the cost of suitable accommodation and food on board the Ship which shall be supplied free of charge by the Buyer), employ and place a suitably qualified and experienced English-speaking guarantee engineer acceptable to the Buyer on board the Ship for so long as the Buyer may reasonably require during the Guarantee Period and thereafter until the Builder has remedied every defect to which this Clause 2 applies but in any event no more than 180 (one hundred and eighty) days in aggregate. Not later than fifteen (15) days before delivery of the Ship, the Builder shall provide to the Buyer for its approval (which is not to be unreasonably withheld) the name and credentials of the proposed guarantee engineer. If at any time the Buyer considers the guarantee engineers performance of his duties to be unsatisfactory, the Buyer may by notice to the Builder request the replacement of the guarantee engineer. The Builder shall promptly investigate the Buyers complaint and, if the complaint is justified, the Builder shall (without any cost or liability to the Buyer) effect a suitable replacement acceptable to the Buyer as soon as may be practicable in the prevailing circumstances. | |
2.11 | If: |
(i) | any defect in the Ships external underwater parts is discovered during the Guarantee Period or the period of thirty (30) days referred to in Clause 2.7; or | ||
(ii) | any defect in the Ships external underwater parts is discovered either during the Ships first scheduled drydocking after delivery provided that the first scheduled dry-docking occurs within twenty-four months after delivery of the Ship or, if there is no scheduled dry-docking within this period, under a joint underwater inspection under Classification Society supervision which is to be carried out as close to the end of such twenty four months period as may be convenient having regard to the Ships itinerary and the need to select a suitable location for such under water inspection. The costs (including the costs of attendance of the Classification Societys representative) of such inspection shall be borne by the |
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Builder if any defect is discovered for which the Builder is responsible under this Clause 2 and otherwise such costs shall be borne by the Buyer, |
and if the Classification Society imposes a condition in respect of a defect in such underwater parts for which the Builder is responsible under this Clause 2 and requires the defect to be remedied before the next Ships scheduled drydocking the Builder shall be responsible for the necessary remedial works and the associated drydocking costs. Otherwise, the Buyer shall bear and pay for the haul day and any associated drydocking costs incurred in the ordinary course of the Ships next scheduled drydocking maintenance and the Builder, in addition to the costs of all necessary remedial works, shall bear and pay for such additional drydocking day(s) as may be required to remedy such defect. | ||
2.12 | Without prejudice to the Builders obligations and liabilities under the other express provisions of this Clause 2, the Builder shall not be responsible for any loss or damage caused by any defect except: |
(i) | that, in addition to the other guarantee obligations specified in this Clause 2, the Builder shall be obliged to remedy (or, as provided for in the preceding paragraphs of this Clause 2, to pay for the remedy of) any equipment or part of the Ship that is physically damaged as a direct and proximate result of any defect covered by the Builders guarantee under this Clause 2; | ||
(ii) | for any physical damage directly caused by the Builders remedy of any defect; and | ||
(iii) | for any physical damage directly caused by the wrongful refusal or failure of the Builder or its Subcontractors to remedy (or authorise the remedy) of any defect. |
2.13 | Any sum(s) payable by the Builder under this Clause 2 shall be due and payable as set out in Article 8. | |
2.14 | Except as otherwise expressly provided in Clause 2.11, the Builder shall not be responsible or liable for any defect discovered after the expiry of the Guarantee Period (as the same is defined and extended pursuant to this Clause 2), loss of time due to repair or for any loss of profit, loss of revenue or other consequential losses suffered by the Buyer by reason of any defect. Furthermore, the guarantee under this Clause 2 replaces and excludes any warranty, liability, term and/or condition imposed or implied by any law, custom or usage and save as otherwise expressly provided for in this Contract, the Plans or the Specification the Builder makes no warranty/condition of merchantability or fitness of the Ship or any Part thereof for any particular purpose. |
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1. | CONTRACT PRICE | |
1.1 | The Contract Price for the Ship: |
(i) | shall be EUR735,000,000 (seven hundred and thirty five million euros); and | ||
(ii) | is a fixed price and may be adjusted only in strict accordance with, and subject to, the express provisions of this Contract. |
1.2 | For the avoidance of doubt: |
(i) | the Contract Price includes the cost of the Ship, completed in accordance with the requirements of this Contract, the Specification and the Plans; | ||
(ii) | the Contract Price includes the cost of all Work and the cost of all surveys, tests and trials of the Ship to be performed by, or on behalf of, the Builder or any third parties including the Classification Society and the Regulatory Authorities; | ||
(iii) | the Contract Price includes the cost of procuring the classification notation for the Ship, and of obtaining all certificates and other documents which are required to be delivered pursuant to this Contract, the Specification and the Plans; | ||
(iv) | the Contract Price includes all other costs and expenses of the Builder as provided for herein or otherwise incurred by the Builder unless expressly provided for in this Contract as being for the Buyers account; | ||
(v) | without prejudice to the express rights and obligations of either party under the other provisions of this Contract (including, without limitation, in relation to AOMs agreed between the parties), the Buyer shall have no liability for any increases in the Builders costs of performing the Contract of any nature whatsoever; and | ||
(vi) | all fees and charges incidental to the registration of the Ship under the flag and laws of the Flag State shall be for the account of the Buyer. |
2. | PAYMENTS | |
2.1 | Payment of the Contract Price shall be made to the Builder as follows: |
(i) | [**] [Confidential Treatment], within 3 (three) Working Days after the Effective Date; | ||
(ii) | [**] [Confidential Treatment], on first steel cutting but not before [**] [Confidential Treatment]; | ||
(iii) | [**] [Confidential Treatment], on completion of keel laying (and for these purposes keel laying will be deemed to have taken place when the first prefabricated steel block has been completed |
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and located in its final position in the building dock at the Shipyard) but not before [**] [Confidential Treatment]; |
(iv) | [**] [Confidential Treatment], on the date the Ship is launched into the water at the Shipyard (and for these purposes launching will be deemed to have taken place when the Ship is safely afloat provided that the Ships hull and primary internal structural parts are by then fully welded out and that the Classification Society has confirmed in writing that there is adequate completion of the hull for launching) but not before [**] [Confidential Treatment]; and | ||
(v) | the balance of the Contract Price, on the date of delivery and acceptance of the Ship and the Delivery Documents in accordance with the express provisions of this Contract. |
2.2 | The Builder shall by not less than fourteen (14) days advance written notice advise the Buyer of the date upon which each of the payments referred to sub-clauses 2.1(ii) to (iv) shall become due and payable and, in addition, the notice given in relation to sub-clause 2.1(v) will show (in reasonable detail and on an open-book basis as this expression is defined in Article 3) the Builders calculation of the balance of the Contract Price payable on delivery of the Ship and, in particular, the amounts of any reductions in or additions to the Contract Price occasioned by the terms and conditions of this Contract. | |
2.3 | The Buyers obligations to make the payments referred to in sub-clauses 2.1(i) to (iv) shall, in the case of each such payment, be subject to and conditional upon the Buyers receipt of: |
(i) | the Builders invoice for the relevant payment; and | ||
(ii) | an irrevocable refund guarantee ( Refund Guarantee ) issued in favour of the Buyer in the form set out in Schedule 2 by a first class bank, insurance company or financial institution ( Refund Guarantor ) acceptable to the Buyer (such acceptance not to be unreasonably withheld) securing the refund to the Buyer of the relevant payment together with interest thereon at the Relevant Rate calculated from the date of the Builders receipt of such payment to the date of the Buyers receipt of the refund. |
The Buyers obligation to make the payment referred to in sub-clause 2.1(v) shall be subject to and conditional upon the Buyers receipt of the Builders invoice for the relevant payment and signature of the Protocol of Delivery and Acceptance on behalf of the Buyer and the Builder. | ||
2.4 | The other payments from time to time due under this Contract shall be made as follows: |
(i) | any amount for which a specific payment date is stipulated in this Contract shall be paid on such date; | ||
(ii) | payment or credits for any modifications pursuant to Article 3 (together with an appropriate interest payment or credit, calculated at the Relevant Rate, from the date(s) specified in the relevant AOMS or as determined under Article 13, |
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Clause) shall be made simultaneously with delivery of the Ship and the relevant amounts shall be shown in the invoices to be issued and delivered by the Builder in respect of the Contract Price under Clause 2.1 (v); |
(iii) | payment of any other amounts accruing prior to delivery shall be made simultaneously with delivery of the Ship, and the relevant amounts shall be shown in the invoice to be issued and delivered by the Builder in respect of the Contract Price payment referred to in Clause 2.1(v) and | ||
(iv) | for any amount accruing after delivery in respect of a defect covered by the Builders guarantee under this Contract, payment shall be made as follows: |
(a) | if the parties agree that the defect in question is covered by the Builders guarantee under this Contract, not later than fifteen (15) days after the Builders receipt of an invoice for the defect remedied pursuant to Clause 2 in Article 7; or | ||
(b) | if there is a Dispute as to whether or not the defect is covered by the Builders guarantee under this Contract, on the date on which it is finally determined or adjudged to be a defect under Article 13, together with interest thereon at the Relevant Rate calculated from the date of the Builders receipt of an invoice for the defect remedied pursuant to Clause 2 in Article 7 up to and including the date of the Buyers receipt of the relevant amount. |
2.5 | Every amount from time to time due under this Contract but unpaid for longer than three (3) days from (and excluding) the due date shall bear interest at the Relevant Rate from the due date up to and including the date of receipt by the party to which the amount is owed. | |
2.6 | If the Buyer fails to make any payment when it is due under sub Clauses 2.1(i), (ii), (iii) or (iv), such failure is not due to a default or breach of this Contract by the Builder, and such failure continues for longer than seven (7) days from (and excluding) the due date, then without prejudice to its other obligations under this Contract the Builder shall be entitled (after giving written notice to the Buyer) to suspend performance of all Work from the date on which the notice is given until the date of receipt of the unpaid sum in the Builders Account. In the event of such a suspension, the Delivery Date shall be automatically extended by the actual period of suspension of the Work. | |
2.7 | All amounts payable to the Builder under this Contract shall be paid direct to the Builders Account, and the Builder and the Buyer shall consult with each other about the mode of payment with a view to reducing the amount of any applicable bank transfer charges. | |
2.8 | All payments made by the Buyer to the Builder on account of the Contract Price before delivery and acceptance of the Ship shall be in the nature of advances to the Builder. | |
2.9 | Neither party shall be entitled to set off any claims against payments due to the other under this Contract. |
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2.10 | Payments made by either party to the other under this Contract shall not be construed as a waiver of the right of one party to challenge the other as to the amount due or the due date of any such payments. | |
2.11 | All fees, costs and other charges (including taxes and other amounts payable in respect of bank transfers) whatsoever arising in connection with: |
(i) | each guarantee issued under Clause 2.3 (including, without limitation, fees and other costs or charges payable to the relevant bank(s) and/or insurance company(ies) in respect of the issuance and maintenance thereof) shall be borne and paid by the Builder; and | ||
(ii) | the remittance of payments made under this Contract shall be borne and paid by the paying party. |
2.12 | The euro is the currency of account and payment for each and every sum at any time due from either party to the other under or in connection with this Contract. |
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1. | TERMINATION BY BUILDER | |
1.1 | Each of the following events shall be a Builder Termination Event for the purposes of this Contract: |
(i) | if the Buyer fails to pay any part of the Contract Price under any of Clauses 2.1 (i), (ii), (iii) or (iv) in Article 8 on the due date for such payment and such failure is not remedied within ten (10) Working Days after the receipt by the Buyer of a written notice from the Builder notifying the Buyer of such failure and requesting remedial action; or | ||
(ii) | if the Buyer fails to accept delivery of (and pay the balance of the Contract Price for) the Ship within two (2) Working Days after the Ship and the related Delivery Documents have been duly tendered for delivery by the Builder in compliance with this Contract, the Plans and the Specification; or | ||
(iii) | if any of the following events or circumstances shall occur before the Buyer has accepted delivery of the Ship and paid the balance of the Contract Price (a) a final order shall be made or an effective resolution shall be passed for the winding up of the Buyer (otherwise than by a members voluntary winding up for the purpose of an amalgamation or reconstruction on terms previously approved by the Builder, which approval shall not be unreasonably withheld) or (b) a receiver shall be appointed in respect of the whole or any substantial part of the undertaking of the Buyer or (c) the Buyer shall suspend the payment of its debts or (d) the Buyer shall make an arrangement or composition with its creditors generally or (e) the Buyer shall apply to any court for protection from its creditors generally or (f) the Buyer shall be unable, or shall admit its inability, to pay its debts as they fall due or it shall become or shall be declared insolvent under any applicable law or (g) the Buyer defaults the loan agreement relating to the purchase of the Ship for reasons not attributable to the Builder as a result of which the Buyers financiers terminate their commitment to finance the Ship unless the relevant financing arrangements are reconstituted in a manner reasonably acceptable to the Builder within thirty (30) days or (h) any distress, execution, attachment or other process shall affect the whole or any substantial part of the Buyers business and assets and shall remain undischarged for a period exceeding 21 (twenty one) days or (i) the whole or any substantial part of the Buyers business and assets shall be subject to Compulsory Acquisition by the Bermudian government or any agency thereof for a period exceeding 30 (thirty) days or (j) the Buyers Performance Guarantee or the security thereby given is or becomes wholly or partially invalid, ineffective or unenforceable or the Buyers Guarantor becomes insolvent or enters into proceedings similar to any of those referred to in any of paragraphs (a) to (f) of this Clause 1.1(iii) and the Buyer is unable to propose a substitute guarantee and / or guarantor acceptable to the Builder (such acceptance not to be unreasonably withheld) within ten (10) Working Days after the receipt by the |
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Buyer of a written notice from the Builder requiring replacement of the Buyers Guarantor; or |
(iv) | if the Buyer commits a material breach of any of its material obligations under this Contract and fails to remedy any such breach within 60 (sixty) days after receipt of written notice from the Builder requesting remedial action. |
1.2 | At any time after a Builder Termination Event shall have occurred and be continuing, the Builder may, by written notice to the Buyer, terminate this Contract whereupon: |
(i) | title in the Buyers Supplies owned by the Buyer which have been installed or incorporated in the Ship before termination shall pass to the Builder; and | ||
(ii) | the Builder shall retain and apply (in the manner provided for in Clauses 1.4 and 1.5) all payments previously made by the Buyer to the Builder under this Contract. |
1.3 | If the Builder terminates this Contract under Clause 1.2, it may in its free discretion decide either to complete or not to complete the Ship and thereafter the Builder shall endeavour to obtain the best market price reasonably obtainable for the Ship, the Parts and the Buyers Supplies referred to in Clause 1.2 (i) by sale at public auction or tender or private sale. |
1.4 | If the Builder elects to sell the Ship in its completed state the proceeds of sale received by the Builder, and all amounts retained by the Builder under Clause 1.2 (ii) plus a credit for the value of Buyers Supplies previously delivered by the Buyer and either retained by the Builder or its Subcontractors or sold by any of them, shall be applied as follows: |
(i) | firstly, in payment of all unpaid instalments of the Contract Price as at the date of termination together with interest thereon at the Relevant Rate from the respective due dates for payment thereof to the date of application; | ||
(ii) | secondly, in payment of any other amounts payable by the Buyer to the Builder under the express provisions of this Contract as at the date of termination together with interest thereon at the Relevant Rate from the respective due dates for payment thereof to the date of application; | ||
(iii) | thirdly, in payment of the Builders loss of profit being the proved difference (if any) between the profit that the Builder could reasonably have expected to earn if the Contract had not been terminated and the profit actually earned from the sale of the Ship in its completed state; and | ||
(iv) | finally, in payment of any remaining balance to the Buyer, |
provided that if the total of such proceeds of sale, such retained amounts and such credit shall be less than the balance due to the Builder under paragraphs (i), (ii) and (iii) of this Clause 1.4, the difference shall be paid by the Buyer to the Builder. | ||
1.5 | If the Builder elects to sell the Ship in its incomplete state the proceeds of sale received by the Builder, and all amounts retained by the Builder under Clause 1.2(ii) plus a credit |
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for the value of Buyers Supplies previously delivered by the Buyer and either retained by the Builder or its Subcontractors or sold by any of them, shall be applied as follows: |
(i) | firstly, in payment of all costs necessarily and reasonably incurred by the Builder in preparing the Ship for sale (to the extent not already covered by the payments referred to in Clause 1.2(ii) above) together with interest thereon at the Relevant Rate; | ||
(ii) | secondly, in payment of the Builders loss of profit being the proved difference (if any) between the profit that the Builder could reasonably have expected to earn if the Contract had not been terminated and the profit actually earned from the sale of the Ship in its incomplete state; and | ||
(iii) | finally, in payment of any remaining balance to the Buyer, |
provided that if the total of such proceeds of sale, such retained amounts and such credit shall be less than the balance due to the Builder under paragraphs (i) and (ii) of this Clause 1.5, the difference shall be paid by the Buyer to the Builder. | ||
2. | TERMINATION BY BUYER | |
2.1 | Each of the following events shall be a Buyer Termination Event for the purposes of this Contract: |
(i) | if (a) at any time the Buyer can demonstrate clearly that delivery will not be made, for whatever reason or combination of reasons (excepting reasons which entitle the Builder to extension of the Delivery Date under Article 5 or reasons attributable to the Buyer), by the date falling [**] [Confidential Treatment] from [**] [Confidential Treatment] or (b) delivery has not been made, for whatever reason or combination of reasons (excepting only one or more independent defaults by the Buyer), by the date falling [**] [Confidential Treatment] from [**] [Confidential Treatment]; | ||
(ii) | if the Buyer becomes entitled to terminate this Contract under Clause 3.2 in Article 4 or any of Clauses 2.3, 2.7, 2.9, 2.12, 2.14 or 2.17 in Article 6; | ||
(iii) | if the Builder commits a material breach of any of its material obligations under this Contract and fails to remedy any such breach within 60 (sixty) days after receipt of written notice from the Buyer requesting remedial action; | ||
(iv) | if (a) any guarantee issued in favour of the Buyer under this Contract, or the security thereby given, is or becomes wholly or partially invalid, ineffective or unenforceable or (b) the issuer of any such guarantee becomes insolvent or enters into or is subject to any proceedings similar to any of those referred to in any of paragraphs (a) to (g) of Clause 2.1(vi), unless the Builder replaces any such guarantee and (as the case may be) issuer with a new guarantee and (as the case may be) issuer complying with Clause 2.3(ii) of Article 8 within ten (10) Working Days after receipt of written notice from the Buyer requiring such replacement; or |
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(v) | if either (a) the Builder shall fail at any time to effect or maintain the Insurances, or any insurer shall avoid or cancel the Insurances or the Builder shall commit any breach of or make any misrepresentation in respect of the Insurances the result of which is to entitle the insurers to avoid the cover or otherwise to be excused or released from any or all of their liabilities thereunder, or (b) any of the Insurances shall cease for any reason whatsoever to be in full force and effect, unless the Insurances are re-instated or reconstituted in a manner meeting the requirements of this Contract within seven (7) days; or |
(vi) | if (a) a final order shall be made or an effective resolution shall be passed for the winding up of the Builder (otherwise than by a members voluntary winding up for the purposes of amalgamation or reconstruction on terms previously approved by the Buyer, which approval shall not be unreasonably withheld) or (b) a receiver shall be appointed in respect of the whole or any substantial part of the undertaking of the Builder or (c) the Builder shall suspend the payment of its debts or (d) the Builder shall make an arrangement or composition with its creditors generally or (e) the Builder shall apply to any court for protection from its creditors generally or (f) the Builder shall be unable, or shall admit its inability, to pay its debts as they fall due or it shall become or shall be declared insolvent under any applicable law or (g) any distress, execution, attachment or other process shall affect the whole or any substantial part of the Builders business or assets and shall remain undischarged for a period exceeding 21 (twenty one) days or (h) the Builder defaults any loan agreement relating to the construction of the Ship for reasons not attributable to the Buyer as a result of which the Builders financiers (including the holder of any mortgage or the beneficiary of any other security granted by the Builder over the Ship, any Parts or the Insurances) terminate their commitment to finance the construction of the Ship or commence the enforcement of their rights against the Builder, the Ship, the Parts or the Insurances) unless the relevant financing arrangements are reconstituted in a manner reasonably acceptable to the Buyer within thirty (30) days or (i) the Ship or the whole or any substantial part of the Builders business or assets shall be subject to Compulsory Acquisition by the French government or any agency thereof for a period exceeding 30 (thirty) days. |
2.2 | At any time after a Buyer Termination Event shall have occurred and be continuing the Buyer may by notice to the Builder terminate this Contract and thereafter the Buyer may (in its free discretion) exercise any of the remedies provided for in Clause 2.3. | |
2.3 | The Buyer may: |
(i) | retain and/or claim from the Builder all liquidated damages paid or payable by the Builder to the Buyer under Clause 2.17 in Article 6 subject to the following limits: |
(a) | if the Builder shall have given the Buyer more than one hundred and eighty (180) days notice of the delay in delivery prior to the Delivery Date, in no event shall the aggregate final liquidated damages payable by the Builder to the Buyer in respect of such delay exceeds the sum of |
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[**] [Confidential Treatment]
(b) | if the Builder shall have given the Buyer more than ninety (90) days and less than or equal to one hundred and eighty two (182) days notice of the delay in delivery prior to the Delivery Date, in no event shall the aggregate final liquidated damages payable by the Builder to the Buyer in respect of such delay exceeds the sum of [**] [Confidential Treatment]; | ||
(c) | if the Builder shall have given the Buyer less than or equal to ninety (90) days notice of the delay in delivery prior to the Delivery Date, in no event shall the aggregate final liquidated damages payable by the Builder to the Buyer in respect of such delay exceeds the sum of [**] [Confidential Treatment]; |
(ii) | may also claim from the Builder the aggregate of (a) all payments previously made by the Buyer to the Builder under this Contract on account of the Contract Price together with interest thereon at the Relevant Rate calculated from the date upon which the Builder received each such payment to the date on which the refund is received by the Buyer, (b) the return, free of all encumbrances whatsoever, of any Buyers Supplies that have not been built into or installed on or in the Ship or which may be removed from the Ship, the Shipyard or other place(s) where they are stored and the Buyers Supply Costs for all other such Buyers Supplies that cannot be returned to the Buyer, and (c) all other amounts payable by the Builder to the Buyer under the express provisions of this Contract together with interest thereon at the Relevant Rate from the respective due dates until the date of actual payment of each such amount; and | ||
(iii) | if the Buyers right to terminate the Builders engagement under this Contract (whether under Articles 4 and/or 9 or otherwise) becomes exercisable as a result of any gross negligence or wilful misconduct on the part of the Builder the Buyer shall, in addition to the payments referred to in sub-clauses 2.3(i) and (ii), be entitled to claim from the Builder, as agreed liquidated damages for loss of this Contract and not as a penalty, an amount equivalent to [**] [Confidential Treatment]. |
3. | TERMINATION BY EITHER PARTY | |
The Builders receipt of all payments to be made by the Buyer under the express provisions of Article 9 or, as the case may be, the Buyers receipt of all payments to be made by the Builder under the express provisions of Article 9 shall operate as a full and final settlement and discharge of all obligations and liabilities of the relevant party to the other under this Contract save for any obligations and liabilities of either party in respect of any costs payable in connection with any references or proceedings under Article 13. |
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1. | REPRESENTATIONS, WARRANTIES AND COVENANTS | |
1.1 | Each party acknowledges that the other has entered into this Contract in full reliance on the representations set out in this Clause 1 and each party (in either case, the warrantor ) warrants that such representations are in all respects true, accurate and not misleading in any respect. | |
1.2 | The Warrantor represents and warrants to the other party that: |
(i) | all acts, conditions and things required to be done, fulfilled and performed in order (a) to enable it lawfully to enter into, exercise its rights under and perform and comply with the obligations expressed to be assumed by it in this Contract and (b) to ensure that the obligations expressed to be assumed by it in this Contract are legal, valid and binding have been done, fulfilled and performed; and | ||
(ii) | no legal proceedings have been started or (to the best of the warrantors knowledge and belief) threatened which might have a material adverse effect on the warrantors ability to perform its obligations under this Contract. |
1.3 | The Builder further represents and warrants to the Buyer: |
(i) | that neither the execution of this Contract nor the exercise by the Builder of its rights and performance of its obligations under this Contract will result in any breach of any French or European Union law, regulation, rule, directive or treaty; | ||
(ii) | that it shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws, regulations, rules, directives and treaties of France and the European Union to enable it lawfully to enter into and perform its obligations under this Contract. |
1.4 | The Buyer further represents and warrants to the Builder: |
(i) | that neither the execution of this Contract nor the exercise by the Buyer of its rights and performance of its obligations under this Contract will result in any breach of any law, regulation, rule, directive or treaty applicable to the Buyer or any of the protected parties; and | ||
(ii) | that it shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws, regulations, rules, directives and treaties of Bermuda to enable it lawfully to enter into and perform its obligations under this Contract. |
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2. | EXCLUSION OF LIABILITIES | |
2.1 | The Builder shall not be liable to the Buyer, any other protected parties or any of its or their respective representatives, agents or employees for personal injury, including death, during such time as they or any of them are on board the ship, at the Shipyard or within the premises of Subcontractors or suppliers of the Builder unless such injury, including death is caused by the gross negligence or wilful misconduct of the Builder or the representatives, agents or employees of the Builder. Nor shall the Builder be liable to the Buyer, any other protected parties or any of its or their respective representatives, agents or employees for damage to, or loss or destruction of property of the Buyer, the other protected parties or its or their representatives, agents or employees in France or elsewhere unless such damage, loss or destruction is caused by the gross negligence or wilful misconduct of the Builder or the representatives, agents or employees of the Builder. | |
2.2 | Neither the Buyer nor any other of the protected parties shall be liable to the Builder, its representatives, agents or employees for personal injury, including death, during such time as they or any of them are on board the ship, at the Shipyard or within the premises of Subcontractors or suppliers of the Builder unless such injury, including death is caused by the gross negligence or wilful misconduct of the Buyer, other protected parties or the representatives, agents or employees of the Buyer or other protected parties. Nor shall the Buyer or any other of the protected parties be liable to the Builder, its representatives, agents or employees for damage to, or loss or destruction of property of the Builder, its representatives, agents or employees in France or elsewhere unless such damage, loss or destruction is caused by the gross negligence or wilful misconduct of the Buyer, other protected parties or the representatives, agents or employees of the Buyer or other protected parties. |
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1. | PATENTS, TRADE MARKS AND COPYRIGHTS | |
1.1 | The Builder shall procure all such approvals and licenses, and pay all such royalties, licence fees or other similar charges, on or in connection with: |
(i) | the Ship; | ||
(ii) | any Parts (other than Buyers Supplies) installed or incorporated in, stowed on or otherwise delivered with the Ship; and | ||
(iii) | any part of the Work, |
as may be necessary to ensure that the same are delivered to the Buyer and may be owned and operated by the Buyer (and its successors, assignees and counterparties) without infringement of any patent, patent right, copyright, trademark, trade secret or other intellectual property right. | ||
1.2 | The Builder shall indemnify fully, hold harmless and defend the Buyer and the other protected parties from and against all actions, claims, costs, liabilities and direct losses (subject to Article 14, Clause 14) that any of them may suffer or incur as a result of any actual or alleged infringement of any patents, patent rights, copyrights, trademarks, trade secrets or other intellectual property rights of any kind or nature on or in connection with the Ship, the Parts (other than Buyers Supplies) or any part of the Work or the ownership or the proper use thereof by the Buyer provided that this indemnity shall not apply to any such infringement if the management of the Buyer or the management of any other protected party knew of the relevant infringement (at any time between the Effective Date and the date of actual delivery of the Ship) but failed to notify the Builder. | |
1.3 | If by reason of any claim for which the Builder is responsible under this Clause 1: |
(i) | the Ship or any Part (other than Buyers Supplies) shall be held to constitute an infringement of any patent, patent right, copyright, trademark, trade secret or other intellectual property right; or | ||
(ii) | the Buyers free use and possession or quiet enjoyment of the Ship or any such Part shall be in any manner or to any extent disturbed, interfered with, limited, restricted or restrained (whether by reason of an actual or threatened arrest, detention or claim or as a result of any other encumbrance or for any other reasons whatsoever), |
the Builder shall, at its own expense, promptly take all such steps as may be necessary fully to restore to the Buyer the free use and possession and quiet enjoyment of the Ship or such Part including (without limitation) if the Buyer shall so require, by replacing any infringing Part with a non-infringing Part which is satisfactory to the Buyer and/or the Classification Society and/or the Regulatory Authorities. | ||
1.4 | The Buyer shall indemnify fully, hold harmless and defend the Builder from and against all actions, claims, costs, liabilities and direct losses (subject to the exclusions referred to in Article 14, Clause 14) that that it may suffer or incur as a result of any actual or |
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alleged infringement of any patents, patent rights, copyrights, trademarks, trade secrets or other intellectual property rights of any kind or nature on or in connection with any Buyers Supplies, plans, designs and engineering and design data supplied by the Buyer to the Builder under or in connection with this Contract provided that this indemnity shall not apply to any such infringement if the management of the Builder knew of the relevant infringement (at any time between the Effective Date and the date of actual delivery of the Ship) but failed to notify the Buyer. | ||
2. | RIGHTS TO ENGINEERING AND DESIGN DATA | |
2.1 | All plans, designs and engineering and design data supplied by the Buyer to the Builder which are the property of the Buyer shall remain the property of the Buyer, and such plans, designs and engineering and design data may be used by the Builder only as permitted by this Clause 2. | |
2.2 | All plans, designs and engineering and design data supplied by the Builder to the Buyer which are the property of the Builder shall remain the property of the Builder, and such plans, designs and engineering and design data may be used by the Buyer only as permitted by this Clause 2. | |
2.3 | The Builder hereby grants to the Buyer and the other members from time to time of the Buyers Group an irrevocable, non-exclusive, perpetual, royalty-free, worldwide license to use the plans, designs, and engineering and design data referred to in Clause 2.2 in connection with the operation, maintenance, modification, redesign, refurbishment, repair, sale or other use of the Ship after delivery and such licence to use may be transferred to any charterer or other operator, to any manager or to any buyer of the Ship for such purposes without the need to seek or obtain any consent from the Builder, its successors or assigns. | |
2.4 | Each party shall take all reasonable precautions to maintain in confidence, and will not use or permit the use of except as may be necessary for the purposes of the Work or as otherwise permitted by the express provisions of this Clause 2 any of the designs, plans and engineering and design data owned by the other party. | |
2.5 | Nothing contained in this Contract shall be construed as transferring any patent, patent right, copyright, trademark, trade secret or other intellectual property right created or used in the performance of this Contract, all of which are hereby expressly reserved to the true and lawful owners thereof. |
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1. | TAXES AND CONTRACT EXPENSES | |
1.1 | The Builder shall be solely responsible for and shall pay or cause to be paid, without recourse to the Buyer or any member of the Buyers Group, all taxes of any kind whatsoever that are imposed, determined or assessed in any of the following jurisdictions (the relevant jurisdictions ) France or (if different) the country of the Shipyard or the country of any Subcontractor, in connection with: (i) the making, execution and performance of this Contract by the Builder; (ii) the construction, sale, delivery and export of the Ship in and from any of the relevant jurisdictions; (iii) the manufacture in, and importation and exportation of any Parts (other than Buyers Supplies) into or out of, any of the relevant jurisdictions; and (iv) the receipt of the payment of the Contract Price in France, and the Builder shall indemnify fully, hold harmless and defend the Buyer and other protected parties from and against any actions, claims, costs, liabilities and losses which any of them may suffer or incur in relation to any such taxes. | |
1.2 | The Buyer shall be solely responsible for and shall pay or cause to be paid, without recourse to the Builder, all taxes of any kind whatsoever that are imposed, determined or assessed in connection with: (i) the making, execution and performance of this Contract by the Buyer (other than any taxes imposed, determined or assessed in any of the relevant jurisdictions for which the Builder is responsible); (ii) the importation into any of the relevant jurisdictions of any Buyers Supplies delivered by the Buyer to the Builder or any Subcontractor; (iii) the importation of the Ship or any Parts into the country of the Buyer; and (iv) the residence or activities of any of the Buyers representatives in France, and the Buyer shall indemnify fully, hold harmless and defend the Builder from and against any from and against any actions, claims, costs, liabilities and losses which the Builder may suffer or incur in relation to any such taxes. | |
1.3 | Each party shall bear and pay all costs and expenses incurred by it in connection with the negotiation, preparation and execution of this Contract. |
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1. | TECHNICAL DISPUTES | |
1.1 | Except where a Dispute of a technical nature is determined by the Classification Society under Clause 4.2 in Article 1 or, as appropriate, by a Regulatory Authority under Clause 4.4 in Article 1, any Dispute of a technical nature giving rise to issues purely of fact (including, without limitation, any difference of opinion relating to the costs and time effects of any modifications proposed under Article 3 or to questions as to the existence, degree or extent of any alleged non-compliance of the Ship or any Part to the Contract, the Plans, the Specification, or the Class or Regulatory Rules) shall be referred to the Head Office of the Classification Society for its final decision provided that if the Head Office of the Classification Society declines to accept any such referral, or if either party reasonably considers that it is not appropriate to refer the Dispute in question to the Head Office of the Classification Society, with the agreement of both parties the Dispute shall be referred to a mutually acceptable technical expert for his final decision. | |
1.2 | The procedure applicable to the resolution of any Dispute of a technical nature (whether by the Classification Society or by a mutually agreed technical expert) shall be as follows: |
(i) | the person or body to whom the Dispute is referred (the Expert , which term shall also apply to any substitute appointed by mutual agreement of the parties) shall be requested to make a final decision within 21 (twenty one) Working Days after it has accepted the appointment; | ||
(ii) | within 10 (ten) Working Days after the Expert has confirmed to both parties that it has accepted the appointment, each party will send to the Expert (and simultaneously to the other party), by email, telefax or registered courier, its submissions and supporting evidence in relation to the Dispute ; | ||
(iii) | if a party fails to submit its submissions and supporting evidence within the time limit laid down in paragraph (ii), it shall be deemed to have admitted the correctness of the other partys submissions; | ||
(iv) | the Expert shall act as an expert and not as an arbitrator; | ||
(v) | the decision of the Expert shall be final and binding on both parties (except in the case of fraud, bad faith or manifest error or unless otherwise agreed in writing by the parties); and | ||
(vi) | the parties shall bear the Experts costs equally. |
1.3 | If within 10 (ten) Working Days after receipt by a party of a notice of a Dispute from the other party: |
(i) | the Head Office of the Classification Society has failed to accept a referral pursuant to Clause 1.1; or |
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(ii) | a party reasonably considers that it is not appropriate to refer any Dispute of a technical nature to the Head Office of the Classification Society or to a technical expert; or | ||
(iii) | the parties have failed to agree upon the identity of a mutually acceptable technical expert and obtain written acceptance of its appointment, |
the Dispute shall be determined in accordance with Clause 2. | ||
2. | JURISDICTION | |
2.1 | Except where a Dispute is determined under Clause 1.1, the English courts shall have exclusive jurisdiction to settle and determine all Disputes. | |
2.2 | Each party agrees that the English courts are the most appropriate and convenient courts to settle and determine Disputes and that accordingly no party will argue to the contrary; and each party hereby irrevocably submits itself to the jurisdiction of the English courts for the purposes of this Contract. | |
2.3 | A judgment relating to this Contract that is given or enforceable by the English courts may be enforced without review (subject to mandatory law) in any other jurisdiction and each party waives all of its rights to apply for or require any such review. | |
2.4 | Subject to Clause 2.6 in Article 8, no Dispute shall entitle the Builder to cease or suspend any part of the Work or to withhold delivery of the Ship, nor shall any Dispute entitle the Buyer to withhold the payment of any part of the Contract Price due under any of Clauses 2.1(i), (ii), (iii) or (iv) in Article 8 beyond the relevant due date for payment provided that nothing in this provision shall prejudice any right which: |
(i) | the Builder may have to retain possession of the Ship on account of non-payment of the Contract Price; or | ||
(ii) | the Buyer may have to dispute the due date for payment of any part of the Contract Price under Clause 2.1(v) in Article 8. |
2.5 | For the avoidance of doubt, if any Dispute arises before delivery of the Ship and is referred for determination under any of the express provisions of Clauses 1 or 2 hereof, the Builder shall not be entitled to dispose of the Ship pending the final determination of such Dispute. | |
3. | GOVERNING LAW | |
3.1 | This Contract is governed by and shall be construed in accordance with English law. | |
3.2 | Each party irrevocably agrees before the Effective Date to appoint and thereafter to maintain Clifford Chance Secretaries Limited ( CCSL ) as agent for service of process in relation to any proceedings before the English courts in connection with this Contract and all related agreements, securities and other documents including (without limitation) the Builders Performance Guarantee, the Buyers Guarantee and the Option Agreement. | |
3.3 | Without prejudice to any other mode of service allowed under any relevant law, service of any proceedings or process or judgment issued out of, or made or granted by, the |
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English courts may be served by being delivered to the last known address in London of CCSL or to the relevant party itself at the address for such party set out in Clause 4. |
3.4 | The Builder (for itself, its successors and assignees) irrevocably and unconditionally agrees that, notwithstanding the appointment of CCSL referred to in Clause 3.2 above, Clifford Chance LLP may act as legal advisors and attorneys of the Buyer and other members of the Buyers Group for all purposes whatsoever under or in connection with this Contract and all related agreements, securities and other documents including, without limitation, for the purposes of any legal proceedings arising out of or in connection with this Contract or such agreements, securities and other documents. | |
4. | NOTICES | |
4.1 | Any notice or other communication in relation to material matters in connection with this Contract shall be in writing in the English language and shall be given to the addressee at the address set out below or sent by telefax to the telefax number given below, marked for the attention of the relevant individual listed in the Attention lines set out below provided that all notices and communications relating to technical matters (including, without limitation, those concerning the approval of Plans and tests) shall be given to the Supervisor at the address set out in paragraph (ii) below or sent by telefax to the telefax number specified in paragraph (ii) below. |
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(i) | If to the Buyer, to: | F3 Two, Ltd. c/o | |||||
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665 Corporate Centre Drive | |||||||
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Miami, Florida 33126 | |||||||
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Telefax: | + 1 305 436 4113 | ||||||
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Attention: | Mr Colin Veitch, President & CEO | ||||||
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with a copy to telefax: | +1 305 436 4117 | ||||||
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Attention: | Mr Mark Warren, General Counsel | ||||||
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(ii) | If to the Supervisor, to: | the Supervisor | |||||
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c/o the Supervisors designated office | |||||||
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at the Shipyard | |||||||
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Telefax: | To be advised | ||||||
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Attention: | To be advised | ||||||
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(iii) | If to the Buyers UK newbuilding office, to: | ||||||
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NCL (Bahamas) Ltd. c/o | |||||||
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1 Derry Street | |||||||
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London | |||||||
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W8 5NN | |||||||
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Telefax: | + 44 20 7938 4515 | ||||||
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Attention: | Mr Trond Sorensen | ||||||
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(iv) | If to the Builder, to: | Aker Yards, S.A. | |||||
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Avenue Bourdelle B.P. 90180 | |||||||
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44613 |
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Saint-Nazaire | |||||||
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Cedex | |||||||
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France | |||||||
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Telefax: | +33 (0) 2 51 10 91 61 | ||||||
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Attention: | Chief Executive Officer | ||||||
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with copy to: | |||||||
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Telefax: | +33 (0) 2 51 10 99 94 | ||||||
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Attention: | Contract Director | ||||||
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And with a copy to: | |||||||
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Telefax: | +358 10 670 24 04 | ||||||
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Attention: | Chief Legal Counsel |
or to such other person, address or telefax number as either party may (by not less than five (5) Working Days notice in writing) specify to the other. | ||
4.2 | In the absence of evidence of earlier receipt, any notice or other communication shall be deemed to have been duly given: |
(i) | if correctly addressed and marked for the attention of the appropriate individual and delivered personally, when left at the appropriate address of the addressee; | ||
(ii) | if correctly addressed and marked for the attention of the appropriate individual and sent by pre-paid registered mail (or registered airmail if international) or courier, upon acknowledgement of receipt by return telefax; and | ||
(iii) | if correctly addressed and marked for the attention of the appropriate individual and sent by telefax to the correct number, upon acknowledgement of receipt by return telefax. |
4.3 | Communications in relation to matters other than those referred to in Clause 4.1 may be given by email. |
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1. | COMPUTATION OF TIME |
1.1 | Except as otherwise provided in this Contract, all periods of time shall be computed by including Saturdays, Sundays and holidays except that if any period terminates on: |
(i) | any day which is not a Working Day in London or Paris (in the case of periods applicable to action by the Buyer); or | ||
(ii) | any day which is not a Working Day in Paris (in the case of periods applicable to action by the Builder), |
such period shall be deemed to be extended to the next following Working Day in such place. |
2. | ASSIGNMENTS | |
2.1 | The Buyer may: |
(i) | grant to its financiers of the Ship, or the other financiers of the Buyers Group, assignments of (or other security interests in) this Contract, the Insurances (in respect of Buyers Supplies), and the Refund Guarantees and any other securities that may be issued to the Buyer under and in connection with this Contract; | ||
(ii) | assign, novate or transfer this Contract to any member of the Buyers Group or to any other person connected with the financing of the Ship (with the prior approval of the Builder, which is not to be unreasonably withheld); and | ||
(iii) | assign its post-delivery rights under this Contract to any purchaser, lessee or bareboat charterer of the Ship, |
provided that the Buyers Guarantee shall remain in full force and effect or, if legally necessary to replicate the security intended to be conferred by such guarantee, shall be replaced with another guarantee acceptable to the Builder (such acceptance not to be unreasonably withheld) notwithstanding any such assignment, novation or transfer. |
2.2 | As and when so requested by the Buyer, the Builder will provide the Buyers financiers and permitted assignees with all such information and documentation as they may reasonably request without depriving the Builder of its rights and interest under this Contract. | |
2.3 | The Builder may assign its rights under this Contract and its interest in the Insurances to its financiers for the Builders pre-delivery construction financing of the Ship and the Refund Guarantors. Otherwise, the Builder shall not assign or novate or transfer, or purport to assign or novate or transfer, any of its rights or obligations under this Contract. | |
3. | PARTIAL ILLEGALITY | |
3.1 | If any provision of this Contract or the application thereof to any person or in any circumstances shall to any extent be illegal, invalid or unenforceable, such illegality, |
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invalidity or unenforceability shall not prejudice the effectiveness of the remainder of this Contract or the application of such provision to other persons or in other circumstances and each other provision of this Contract shall be legal, valid and enforceable to the fullest extent permitted by law. |
4. | CONFIDENTIALITY | |
4.1 | After the date of this Contract, the parties will agree the terms and publication date(s) of press announcements in relation to the construction of the Ship. | |
4.2 | Save as provided in Clause 4.1, each party agrees that at all times before or after delivery of the Ship it shall hold this Contract, the Plans and the Specifications in strict confidence and shall not disclose (or allow to be disclosed) to any third party any information or documentation in relation to this Contract provided that : |
(i) | each party may, with the prior written consent of the other, disclose to any third party information relating to the matters referred to in this Clause 4.2; | ||
(ii) | each party shall be entitled to disclose information about the Contract strictly on a need to know basis and then only to such extent as shall be reasonably necessary to enable each recipient to carry out its work in relation to the Contract to its employees and other representatives, and also to its shareholders, bankers, auditors and legal advisors; and | ||
(iii) | each party shall be entitled to disclose information about the Contract to such extent as may from time to time be required by law or the rules or regulations of any applicable stock exchange or similar body. |
5. | AMENDMENTS | |
5.1 | No amendment, modification, supplement or other variation of this Contract, the Plans or the Specification shall be of any effect unless made in writing and signed by the Builder and the Buyer or their respective duly authorised representatives. | |
6. | NO WAIVER | |
6.1 | No failure or delay on the part of either party in exercising any right, power or remedy under this Contract shall operate as a waiver thereof or a waiver of any other rights, powers or remedies nor shall any single or partial exercise of any such right power or remedy preclude any other or further exercise of any such right, power or remedy or the exercise any other right, power or remedy. | |
6.2 | The respective rights, powers and remedies conferred on the parties by this Contract are cumulative and (save where the contrary is expressly stated) are in addition to (and not exclusive of) any rights, powers and remedies provided by law. | |
7. | CONSENTS | |
7.1 | Subject to Clause 1.6 in Article 2, where any matter: |
(i) | requires an instruction from the Buyer, a waiver by the Buyer or the approval, authority or consent of the Buyer any such instruction, waiver, approval, |
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authority or consent shall not be deemed to have been given or to any extent effective unless it is given in writing by a duly authorised representative of the Buyer; and | |||
(ii) | is required to be acceptable or satisfactory to the Buyer, the Buyer shall not be deemed to have accepted, or to be satisfied with such matter, unless its acceptance or satisfaction is communicated in writing to the Builder by a duly authorised representative of the Buyer. |
7.2 | Subject to the other express provisions of this Contract, where any matter: |
(i) | requires an instruction from the Builder, a waiver by the Builder or the approval, authority or consent of the Builder any such instruction, waiver, approval, authority or consent shall not be deemed to have been given or to any extent effective unless it is given in writing by a duly authorised representative of the Builder; and | ||
(ii) | is required to be acceptable or satisfactory to the Builder, the Builder shall not be deemed to have accepted, or to be satisfied with such matter, unless its acceptance or satisfaction is communicated in writing to the Buyer by a duly authorised representative of the Builder. |
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11.2 | The Parties intend that the conditions referred to in Clause 11.1 (i), (ii), (iv), (v), (vi) and (vii) shall be satisfied by 11 September 2006 and that the conditions referred to in Clause 11.1 (iii) shall be satisfied by 31 October 2006. If this Contract has not come into effect by 4pm (Paris time) on 31 October 2006 either party may, by written notice given to the other within ten (10) days thereafter, cancel this Contract. | |
11.3 | In the event of the exercise by either party of its right to cancel this Contract under Clause 11.2, this Contract shall, with effect from such cancellation, be null and void without any liability whatsoever on the part of either party. | |
11.4 | Notwithstanding any provision to the contrary in this Contract, the Buyer shall not be obliged to make any payment to the Builder hereunder until such time as all of the conditions set out in Clause 11.1 have been fulfilled or expressly waived in writing by both parties. | |
12. | PROTECTED PARTIES | |
12.1 | Any of the protected parties may enforce only the provisions of this Contract that are expressed to confer any rights on them, subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999. | |
12.2 | The Builder and the Buyer may at any time, by agreement between them, rescind this Contract or vary it without the consent of the protected parties. | |
12.3 | If any protected party becomes entitled to bring a claim against the Builder under or in respect of this Contract, the Buyer shall bring such claim against the Builder on behalf of the relevant protected party and all communications, notices and proceedings shall be channelled through the Buyer. | |
12.4 | If any claim is made against the Builder by the Buyer on behalf of a protected party under Clause 12.3, the Builder shall have available to it by way of defence only such matters as would have been available to it by way of defence if the relevant protected party had been a party to this Contract. For the avoidance of doubt, this means that in |
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respect of any claim by the Buyer on behalf of a protected party the Builder shall be entitled to raise any defence that the Builder would have been entitled to raise if the relevant claim had been brought by the Buyer for itself. |
12.5 | Save as provided above the operation of the Contracts (Rights of Third Parties) Act 1999 is hereby excluded. | |
13. | RELATIONSHIP OF PARTIES, PREVIOUS NEGOTIATIONS | |
13.1 | The Contract does not create any partnership, joint venture or other joint relationship between the Builder or the Buyer. | |
13.2 | This Contract supersedes all prior negotiations, representations, undertakings and agreements between the parties in relation to the subject matter of this Contract. | |
14. | EXCLUSIONS | |
14.1 | Subject to the obligations and liabilities of either party to pay the liquidated damages and other compensation amounts expressly provided for in this Contract, each party agrees that neither party shall be liable to the other under or in connection with this Contract for any form of consequential, exemplary, incidental, indirect or special losses and/or damages of any nature whatsoever, howsoever caused and whensoever arising. | |
14.2 | Save as otherwise expressly provided in this Contract, all implied terms and conditions are hereby excluded. | |
14.3 | Nothing in this Contract shall operate to exclude, limit or restrict any liability arising as a result of fraud, or death or personal injury resulting from gross negligence or wilful misconduct. | |
15. | FAIR DEALING AND BUSINESS STANDARDS | |
15.1 | Each party agrees: to use all reasonable efforts to make timely decisions in a speedy and effective way; to deal fairly with each other; and at all times to act in good faith. In this context, good faith includes, without limiting the duty of each party to co-operate with the other, a duty of honesty to the other party and a duty not to intentionally mislead the other party. | |
15.2 | Each party, in performing its obligations under the Contract, shall maintain appropriate business standards, procedures, precautions and controls, including those necessary to avoid any real or apparent impropriety or adverse impact on the interests of the other party. Each party shall implement (and shall ensure that its employees and other representatives comply with) a policy which prohibits the giving or receiving of any inappropriate favours, gifts, entertainment, payments, loans or other consideration of any kind directly or indirectly connected with the Contract or the Work or any other activities that might influence individuals to act contrary to the best interests of their principal or applicable law. | |
15.3 | Each party warrants and represents that all financial settlements, reports and billings rendered to the other party under or in connection with the Contract shall properly reflect the facts of all activities and transactions handled for the other partys account and may |
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be relied upon as being complete and accurate in any further recording or reporting made by the such party or any other member of the corporate group to which such party belongs. |
15.4 | Save for the commission payable by the Builder to brokers whose identity has previously been disclosed in writing by the Builder to the Buyer, no commission of any kind whatsoever is or will be payable (whether directly or indirectly) by or to the Builder in relation to or in connection with the Contract or any of the business transactions described in or contemplated by the Contract. Any breach of this Clause by the Builder may be treated by the Buyer as a material breach of the Builders obligations for the purposes of Article 9, Clause 2.1 (iii). | |
16. | COST SAVINGS |
The Builder and the Buyer will co-operate and Work closely together on an open-book basis in order to reduce costs and generate savings. |
17. | PRIORITY OF CONTRACT, PLANS AND SPECIFICATION | |
17.1 | This Contract, the Plans, and the Specification are intended to complement and supplement one another. All general language or requirements embodied in the Specification are intended to amplify, explain and implement the requirements of this Contract. The Specification and the Plans are also intended to explain each other, and anything shown in the Plans but not stipulated in the Specification or stipulated in the Specification and not shown in the Plans shall be deemed and considered as if embodied in both. | |
17.2 | If there is any conflict between any provisions of the following documents, priority between them shall be determined as follows: |
(i) | this Contract and the Specification or Plans, the former shall prevail; | ||
(ii) | the Specification and the Plans, the former shall prevail; | ||
(iii) | the GA Plan and other Plans, the former shall prevail; and | ||
(iv) | one or more Plans (other than the GA Plan), the latest in time shall prevail. |
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(i) | Approval by the C33 Buyer for the C33 of any document, drawing, or supplier shall be considered valid and binding upon the Buyer for the Ship unless the parties make an agreement to the contrary. | ||
(ii) | All modifications and/or changes agreed by the Builder and the C33 Buyer for the C33, will be deemed agreed by the Buyer for the Ship as well unless the parties make an agreement to the contrary. Adjustments of the Contract Price, extension of time for delivery, and/or of other terms of this Contract may be different from adjustments for the C33, taking into consideration work progress status, design and other work that will not have to be repeated, etc. However, such adjustments will be communicated to the Buyer and shall have to be approved simultaneously for both the C33 and the Ship. | ||
(iii) | Except as provided in the following paragraphs of this Clause 1.1, any modifications and changes required by the Buyer for the Ship compared to the C33 will be treated as modification or change as per Article 3, Clause 1 of this Contract. | ||
(iv) | Acceptable modifications as compared to C33. | ||
Within the Ship definition, the Buyer can alter the following, which shall not be considered as modifications or changes under Article 3, Clause 1 of this Contract: |
(a) | Changes of pieces of art and decoration to be supplied by the Buyer (as far as they do not lead to change in the arrangement of foundations, room arrangement, etc. as compared to the C33). | ||
(b) | Changes of colors in crew common spaces. | ||
(c) | For the passenger public spaces: | ||
(d) | Changes of colors and finishes (minor decorative elements) of the ceiling, walls, pillars and furniture. | ||
(e) | Changes of patterns and colors of the carpets | ||
(f) | Changes of reference of the marble/tiles/wooden flooring (provided that the Builder purchase prices remain the same as for the C33 corresponding elements). | ||
(g) | Changes of the fabric for the seats, the curtains, bedspreads. |
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(h) | Changes of the furnished materials for the tables | ||
(i) | Changes in names of the rooms. | ||
(j) | Any other changes to public spaces that do not modify the coordination drawings of the C33 and/or of the Ship. |
(v) | Changes in equipment, material, suppliers | ||
As a general rule, equipment, materials and suppliers for the Ship will be the same as for the C33. The Builder will be entitled to propose to use new techniques and/or materials on the Ship as compared to the C33. Buyers approval will not be refused where such changes are proposed to accommodate the application of new techniques and/or materials, provided that they afford at least the same reliability/quality/warranty and performances as on the C33 and if they do not and will not involve any adverse change in the Ships operations or services to passengers nor any additional costs (initial or of an ongoing operational nature) or other adverse effects (initial or ongoing) to or for the Buyer. | |||
If and only in case of deficiency of suppliers chosen for the C33, the Builder shall be entitled to propose for the Ship changes in materials, equipments, and/or suppliers, in which case the selection of materials, equipment and/or suppliers will be made in accordance with Article 1, Clause 5 of this Contract |
(vi) | Calculations, trials, test, mock-up, models: | ||
The following calculations, trials, tests, mock-ups and models when approved for the C33, shall be considered acknowledged, validated and approved by the Buyer and will not be repeated for the Ship. |
(a) | All calculations and analysis, studies, for structure, noises, vibrations, etc. (only adjustments for loading cases resulting from possible difference in light ship weight will be carried out). | ||
(b) | Wind-tunnel tests, model basin tests and propeller tests. | ||
(c) | Mock-up apartments working models, toilet unit etc | ||
(d) | Preliminary sea trials (but not main sea trials) | ||
(e) | Maneuvering tests, if approved by flag administration and Class and the Buyer. Any test/trial specific to a prototype ship and which the Buyer acknowledges that they have not to be repeated on the Ship which is a second ship in the series. |
(vii) | Noise and vibrations levels tests shall be carried out on the Ship unless taking into consideration results of noise and vibration levels measurements made for the C33 during dock and sea trials, the Buyer agrees with the Builders proposal to choose a limited number of measuring points for the Ship in significant locations to check that levels on the Ship are within the required levels. |
- 69 -
(viii) | Buyers Supplies | ||
All Buyers Supplies to be installed by the Builder will be of the same types and quantity as for the C33 provided that the Buyer shall be entitled to make changes in Buyers Supplies to reflect changes made under paragraph (iv) above so long as such changes would not unavoidably result in the Builder exceeding its original budget for installation of the relevant Buyers Supplies. |
- 70 -
AKER FRANCE S.A | PROJECT: | AOM No: | ||
St.Nazaire | Calculation +/- costs | Date: | ||
Subject:
|
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|
||||
Reference:
|
||||
|
||||
Description:
|
ED | ID | |||||||||||||||
(External | (Internal | Work | Design | Weight | Longitudinal | Vertical | ||||||||||
Delivery) | Delivery) | hours | Hours | + / | Position | position | ||||||||||
BGR | Description of work | (Euro) | (Euro) | (Hours) | (Hours) | (Tonnes) | (Metres) | (Metres) | ||||||||
|
||||||||||||||||
|
||||||||||||||||
SUM:
|
| Guaranteed Deadweight | |
| Guaranteed Service Speed | |
| Delivery Date | |
| Other Contractual Matters |
Name:
|
Phone: | Department: |
- 71 -
Signed by
|
||||
|
|
|||
for and on behalf of [ Buyer ] | ||||
|
||||
Signed by
|
||||
|
| |||
for and on behalf of AKER YARDS S.A. |
- 72 -
To: | [insert name of Buyer] |
Date: | [ ] |
- 73 -
- 74 -
- 75 -
To: | [Buyer] |
Date: | [ ] |
- 76 -
- 77 -
|
||||
For and on behalf of
AKER YARDS ASA
|
||||
|
||||
|
||||
|
||||
|
||||
|
|
|||
|
||||
[
name and position
]
|
[ name and position ] |
- 78 -
- 79 -
- 80 -
|
||||
For and on behalf of NCL Corporation Ltd
|
||||
|
||||
|
||||
|
||||
|
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|
|
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|
||||
[
name and position
]
|
[ name and position ] |
- 81 -
1. | DEFINITION OF CERTAIN TERMS | |
1.1 | In this Contract: | |
AOM has the meaning given in Article 3, Clause 1.3; | ||
Builders Account means the euro denominated account with IBAN number: [**] [Confidential Treatment] or as further modified by notice given by the Builder to the Buyer, and held by the Builders Bank at its office in Paris; | ||
Builders Bank means Société Générale, Agence Opéra or as further modified by notice given by the Builder to the Buyer; | ||
Buyers Group means (i) NCL Corporation Ltd, and its subsidiaries and (ii) all other associated or affiliated companies; | ||
Buyers Performance Guarantee means the guarantee to be given by Buyers Guarantor in the form set out in Schedule 5; | ||
Buyers Guarantor means NCL Corporation Ltd., a company incorporated in Bermuda and having its registered office at Milner House, 18 Parliament Street, Hamilton, HM12, Bermuda; | ||
Builders Performance Guarantee means the guarantee to be given by Aker Yards ASA in the form set out in Schedule 4; | ||
Buyers Supplies has the meaning given in Article 1, Clause 1.1(i)(b); | ||
Buyers Supply Costs means at any given time the aggregate of (i) the costs incurred by the Buyer in relation to the delivery and transportation to the Shipyard, Ship or relevant Subcontractor, and all related incidental costs including insurance up to the point of delivery, of all Buyers Supplies and (ii) the Buyers reasonably estimated costs of acquiring and obtaining delivery of replacements for such Supplies at such time; | ||
C33 means the ship, project number PB 6847, having Hull Nr C33 to be built by the Builder for F3 ONE Ltd (the C33 Buyer ) under a shipbuilding contract signed on even date (the C33 Contract ); | ||
Class Rules has the meaning given in Article 1, Clause 4.1; | ||
Classification Society has the meaning given in Article 1, Clause 4.1; | ||
commission includes any advantage or benefit (whether monetary or not), brokerage, consideration, gift, gratuity, inducement, introduction fee, payment (other than any payment made or to be made in accordance with the express provisions of this Contract), promise, reward or success fee of any kind whatsoever payable to any broker, agent, intermediary or other person in relation to or in connection with the placing and/or performance of any activities connected with this Contract; |
- 82 -
Compensation Date means (i) the 7th (seventh) day from (and including) the Delivery Date or (ii) the 3rd (third) day from (and including) the Delivery Date if the Ship has not been delivered by the intended delivery date mentioned in the 15 (fifteen) days definite notice given by the Builder under Clause 1.1 in Article 7; | ||
Compulsory Acquisition means a requisition or other compulsory acquisition (including seizure, detention, confiscation or appropriation) by or on behalf of any government or governmental agency or by any persons acting or purporting to act on behalf of any government or governmental agency; | ||
Contract means this shipbuilding contract and (save in the context of Article 14, Clause 18) includes the Plans, the Specification and the schedules, each of which forms an integral part of this Contract; | ||
Contract Price means the fixed price for the Ship specified in Clause 1.1 of Article 8; | ||
Defects List has the meaning given in Article 6, Clause 1.15; | ||
Delivery Date means the fixed delivery date for the Ship specified in Clause 1.1 of Article 7, it being acknowledged and agreed by the parties that such date may be reset only in strict accordance with, and subject to, the express provisions of this Contract; | ||
Design Draft has the meaning given in Article 1, Clause 2.12(ii); | ||
Dispute means any dispute or difference whatsoever arising at any time out of or in connection with this Contract including a dispute regarding the existence, validity or termination of this Contract, and Disputes shall be construed accordingly; | ||
Effective Date has the meaning given in Article 14, Clause 11.1; | ||
encumbrance means (i) any claim or demand (whether in personam or in rem and including any arrest or other detention in connection with any claim) and any debt, and/or (ii) any mortgage, charge, pledge, maritime or possessory or other lien, assignment, hypothecation, trust arrangement, encumbrance, or other security interest securing any obligation of any person or any other type of preferential arrangement (including, without limitation, title transfer and retention arrangements) having a similar effect but does not include any permitted encumbrance; | ||
EUR and euro mean the lawful currency of France. | ||
EURIBOR means the percentage rate per annum for euro deposits determined by the Banking Federation for Europe for the relevant period displayed on the appropriate page of the Telerate or the Reuters screen from time to time or, if such display is not available at any time, as certified by the head office of the Builders Bank at Paris; | ||
Flag State has the meaning given in Article 7, Clause 1.8; | ||
GA Plan means the general arrangement plan [**] [Confidential Treatment] dated [] 2006 and initialled by the parties for the purposes of identification; | ||
Guaranteed Deadweight has the meaning given in Article 1, Clause 2.1(ii); |
- 83 -
Guaranteed Fuel Consumption or GFC has the meaning given in Article 1, Clause 2.1(vii); | ||
Guaranteed Service Speed or GSS has the meaning given in Article 1, Clause 2.1(vi); | ||
Insurances has the meaning given in Article 4, Clause 2.1; | ||
Manuals has the meaning given in Article 1, Clause 1.1(i)(c); | ||
Makers List has the meaning given in Article 1, Clause 5.3; | ||
Mortgage has the meaning given in Article 4, Clause 1.8 and Mortgages shall be construed accordingly. | ||
minor defect has the meaning given in Article 6, Clause 1.15; | ||
Option Agreement means an agreement to be made on mutually acceptable terms between the Builder and the Buyers Guarantor for the construction of one further passenger cruise ship; | ||
Parts has the meaning given in Article 1, Clause 1.1(i)(b); | ||
partial loss means any loss of or damage to the Ship (including Buyers Supplies and other Parts) which does not constitute a total loss and partial loss proceeds means any insurance proceeds paid and/or payable in respect of any partial loss; | ||
permitted encumbrance means any encumbrance (i) created by the Buyer or (ii) arising by operation of law in connection with claims against the Buyer by any person other than the Builder for which the Buyer would not be entitled to compensation or indemnification from the Builder under this Contract; | ||
Plans means the GA Plan, and the other plans and drawings described or referred to in the Specification; | ||
protected parties means (i) the Buyer and NCL (Bahamas) Ltd. ( NCLB ), and (ii) the respective agents, officers, employees, workmen, suppliers and other representatives of the Buyer and NCLB provided that , in the context of Article 12, Clause 1.1 protected parties means the Buyer and any other affected members of the Buyers Group; | ||
Protocol of Delivery and Acceptance has the meaning given in Article 7, Clause 1.3(i); | ||
Refund Guarantee has the meaning given in Article 8, Clause 2.3(ii); | ||
Refund Guarantor has the meaning given in Article 8, Clause 2.3(ii); | ||
Regulatory Authorities means the authorities, bodies and entities having regulatory responsibility and authority in respect of the Ship or specific areas or parts of the Ship, before or after delivery of the Ship, including those identified in Part G3 of the Specification; |
- 84 -
" Regulatory Rules has the meaning given in Article 1, Clause 4.3; | ||
" Relevant Rate means the aggregate of (i) [**] [Confidential Treatment] and (ii) EURIBOR; | ||
" remedy shall be construed (with reference to defects and deficiencies referred to in Articles 6 and 7) so as to mean and include correct, rectify, redesign, remedy, repair, replace or otherwise make good, and test to prove the efficacy of the relevant remedial Work, every defect and deficiency, and any other physical damage, for which the Builder is liable under Articles 6 and 7, and remedial shall be construed accordingly; | ||
" Ship has the meaning given in Article 1, Clause 1.1(i)(a); | ||
Shipyard means the Builders shipyard at Saint-Nazaire, France; | ||
Signing Date means the date on which this Contract is signed by or on behalf of each party; | ||
Specification means Specification [**] [Confidential Treatment] dated [ ] 2006 and, unless the context otherwise requires, specified means stipulated in the Specification or in the Appendices; | ||
Subcontractor(s) shall include each of the Builders makers and suppliers and any other person, company or other entity to whom any part of the Work is subcontracted directly or indirectly by the Builder; | ||
tests means (i) the shop and dock inspections, measurements and tests, (ii) the sea trials, (iii) the other inspections and tests referred to in the Specification and the Plans, and (iv) all such other commissioning, tests, trials and inspections (or retests, retrials and reinspections) as may reasonably be required in order to demonstrate and confirm compliance of the Ship with the Contract, Plans and Specification and the full and final remedy of any defects; | ||
" total loss means any actual, constructive, compromised or arranged or agreed total loss of the Ship (including Buyers Supplies or other Parts); | ||
" Work means all of the Parts to be provided and all of the services, labour and other Work to be supplied and carried out by the Builder and its Subcontractors under and in connection with this Contract, as more particularly described in the Specification and the Plans; | ||
Working Day means any day, other than a Saturday or Sunday, on which banks are generally open for business in each of London and Paris; and |
1.2 | Save where the contrary is expressly stated, any reference in this Contract to: |
(iii) | this Contract, the Specification, the Plans or any other agreements or documents shall be construed as a reference to this Contract, the Specification, the Plans or, as the case may be, such other agreements or documents as the same may have |
- 85 -
been, or may from time to time be, amended, modified, varied, novated or supplemented by agreement of the parties; |
(iv) | an Article or the schedule shall be construed as a reference to an Article or the schedule of this Contract; | ||
(v) | an award shall be construed as a reference to any award, decision, declaration, injunction, judgement, order or other relief; | ||
(vi) | a claim shall be construed as a reference to any action, claim, demand, proceeding, process or suit, whether in arbitration or court or otherwise; | ||
(vii) | a clause shall be construed as a reference to a clause of the Article in which the reference appears; | ||
(viii) | a person shall be construed as a reference to any individual, firm, company, corporation, unincorporated body of persons, or any state or state agency, | ||
(ix) | a party to this Contract shall include a reference to such partys successors and permitted assigns; | ||
(x) | a tax shall be construed as a reference to any tax, assessment, levy, impost, customs, stamp or other duty, or other charge of a similar nature (including, without limitation, any fine or penalty or interest payable in connection with any failure to pay or any delay in paying any of the same), whether national, provincial or local; | ||
(xi) | a judgment shall be construed so as to include any court order, injunction, declaration, decision and any other form of judicial relief; | ||
(xii) | a receiver shall be construed so as to include any liquidator, trustee, administrator, receiver, administrative receiver, manager or similar officer; and | ||
(xiii) | the winding up of a party to this Contract shall be construed so as to include the bankruptcy or liquidation of the party or any equivalent or analogous proceedings under the law of the jurisdiction in which such party is incorporated or any other jurisdiction in which such party carries on business. |
1.3 | The Index, Article, Clause and schedule headings and sub-headings are inserted for convenience only and shall not affect the interpretation of this Contract. |
- 86 -
- 87 -
- 88 -
Signed for F3 Two, Ltd.
|
||
/s/ Colin Veitch
|
||
|
||
|
||
Signed for Aker Yards S.A.
|
||
/s/ signatures illegible
|
||
|
Signed for F3 Two, Ltd.
|
||
/s/ Colin
Veitch
|
||
|
||
|
||
Signed for Aker Yards S.A.
|
||
Signature
Illegible
|
||
|
| Deck 7 breadth of public spaces remains at [**] [Confidential Treatment] meters. | |
| Area of public spaces on deck 14 and on deck 15 is increased to accommodate [**] [Confidential Treatment] at the aft part of the Ship. |
- 2 -
Signed for F3 Two, Ltd.
|
||
/s/ Colin Veitch
|
||
|
||
|
||
Signed for Aker Yards S.A.
|
||
signature
illegible
|
||
|
Signed for F3 Two, Ltd.
|
||
/s/ Colin Veitch
|
||
|
||
|
||
Signed for Aker Yards S.A.
|
||
signatures
illegible
|
||
|
| Deck 7 breadth of public spaces remains at [**] [Confidential Treatment] meters. | |
| Area of public spaces on deck 14 and on deck 15 is increased to accommodate [**] [Confidential Treatment] at the aft part of the Ship. |
- 2 -
-2-
-3-
Name:
Hardelay
|
Name: Signature Illegible | |
Title:
General Manager
|
Title: SUP | |
|
||
Aker
Yards S.A.
Hardelay
|
Signature Illegible | |
|
||
Agreed as of 7
th
September 2006:
|
||
|
||
F3 One, Ltd.
|
F3 Two, Ltd. | |
|
||
/s/ Colin Veitch
|
/s/ Colin Veitch | |
Name:
Colin Veitch
|
Name: Colin Veitch | |
Title:
|
Title: |
-4-
-5-
-6-
-7-
Lease Date:
|
December 1, 2006 | |
|
||
Tenant:
|
NCL (Bahamas) Ltd. d/b/a Norwegian Cruise Line | |
|
||
Address of Tenant:
|
7665 Airport Corporate Center Drive,
Miami, Florida 33126 |
|
|
||
Primary Contact:
|
George Chesney | |
|
||
Landlord:
|
Hines REIT Airport Corporate Center LLC | |
|
||
Address of Landlord:
|
c/o 2800 Post Oak Boulevard
Houston, Texas 77056-6190 Attention: Profit Center Office/Central Division |
|
|
||
Leased Premises:
|
208,737 Rentable Square Feet consisting of: (A) 125,806 Rentable Square Feet in the building known as 7665 Corporate Center Drive (N.W. 19 th Street), Miami, Florida, and (B) 82,931 Rentable Square Feet in the building known as 7650 Corporate Center Drive (N.W. 19 th Street), Miami, Florida | |
|
||
Commencement Date:
|
December 1, 2006 as to all of the Leased Premises other than the Building 10 Sixth Floor Premises and April 1, 2007 as to the Building 10 Sixth Floor Premises | |
|
||
Lease Term:
|
one hundred forty six (146) months | |
|
||
Base Rental:
|
Initially [**] [Confidential Treatment] per Rentable Square Foot (net) escalating on each anniversary of the Commencement Date by [**] [Confidential Treatment]. | |
|
||
Tenant Improvement Allowance:
|
up to [**] [Confidential Treatment] per Rentable Square Foot within the Leased Premises totaling [**] [Confidential Treatment]. | |
|
||
Real Estate Broker(s):
|
Studley, Inc. (as Agent) and Travers Realty, Inc. (as subagent of Studley, Inc.) representing Tenant, Hines Interests Limited Partnership, representing Landlord | |
|
||
Guarantor:
|
NCL Corporation Ltd., a Bermuda corporation |
Page | ||||||||||
ARTICLE I. | 1 | |||||||||
|
1.1 | Leased Premises | 1 | |||||||
|
1.2 | Lease Term | 3 | |||||||
|
1.3 | Use | 3 | |||||||
|
1.4 | Other Use Rights | 4 | |||||||
|
1.5 | Surrender of Premises | 4 | |||||||
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1.6 | Survival | 5 | |||||||
|
1.7 | Termination of Original Lease | 5 | |||||||
ARTICLE II. | 5 | |||||||||
|
2.1 | Rental Payments | 5 | |||||||
|
2.2 | Base Rental | 6 | |||||||
|
2.3 | Additional Rental | 6 | |||||||
|
2.4 | Operating Expenses | 8 | |||||||
|
2.5 | Security Deposit | 10 | |||||||
|
2.6 | Sales Tax | 11 | |||||||
|
2.7 | Guaranty | 11 | |||||||
ARTICLE III. | 11 | |||||||||
|
3.1 | Services | 11 | |||||||
|
3.2 | Keys and Locks | 14 | |||||||
|
3.3 | Graphics, Building Directory and Name | 14 | |||||||
|
3.4 | Parking | 15 | |||||||
ARTICLE IV. | 16 | |||||||||
|
4.1 | Care of Leased Premises | 16 | |||||||
|
4.2 | Entry for Repairs and Inspection | 16 | |||||||
|
4.3 | Nuisance | 16 | |||||||
|
4.4 | Laws and Regulations; Encumbrances; Rules of Building | 16 | |||||||
|
4.5 | Legal Use and Violations of Insurance Coverage | 17 | |||||||
|
4.6 | Hazardous Substances | 17 | |||||||
|
4.7 | Tenant Taxes | 17 | |||||||
ARTICLE V. | 17 | |||||||||
|
5.1 | Leasehold Improvements; Allowances | 17 | |||||||
|
5.2 | Repairs by Landlord | 19 | |||||||
|
5.3 | Repairs by Tenant | 19 | |||||||
ARTICLE VI. | 19 | |||||||||
|
6.1 | Condemnation | 19 | |||||||
|
6.2 | Damages from Certain Causes | 20 | |||||||
|
6.3 | Casualty Clause | 20 | |||||||
|
6.4 | Casualty Insurance | 22 | |||||||
|
6.5 | Liability Insurance | 22 | |||||||
|
6.6 | Hold Harmless | 23 | |||||||
|
6.7 | Waiver of Subrogation Rights | 23 | |||||||
ARTICLE VII. | 23 | |||||||||
|
7.1 | Default and Remedies | 23 | |||||||
|
7.2 | Insolvency or Bankruptcy | 27 | |||||||
|
7.3 | Late Payments | 27 | |||||||
|
7.4 | Attorneys Fees | 27 | |||||||
|
7.5 | Waiver of Homestead | 27 | |||||||
|
7.6 | No Waiver of Rights | 27 | |||||||
|
7.7 | Holding Over | 27 | |||||||
|
7.8 | Subordination | 28 | |||||||
|
7.9 | Estoppel Certificate | 29 |
(i)
Page | ||||||||||
ARTICLE VIII. | 29 | |||||||||
|
8.1 | Sublease or Assignment by Tenant | 29 | |||||||
|
8.2 | Assignment by Landlord | 33 | |||||||
|
8.3 | Peaceful Enjoyment | 33 | |||||||
|
8.4 | Limitation of Landlords Personal Liability | 33 | |||||||
|
8.5 | Force Majeure | 33 | |||||||
ARTICLE IX | 33 | |||||||||
|
9.1 | Notices | 33 | |||||||
|
9.2 | Miscellaneous | 34 | |||||||
|
9.3 | OFAC | 37 | |||||||
|
9.4 | Waiver of Landlords Lien | 37 | |||||||
|
9.5 | Recordation | 37 | |||||||
|
9.6 | Generator | 38 | |||||||
ARTICLE X. | 38 | |||||||||
|
10.1 | Right of First Offer | 38 | |||||||
|
10.2 | Renewal Option | 39 | |||||||
|
10.3 | Available Space | 39 |
LIST OF EXHIBITS | ||||
EXHIBIT A
|
- | SITE PLAN AND LOCATION OF PROPERTY 11 AND PROPERTY 10 | ||
EXHIBIT A-1
|
- | DESCRIPTION OF PARCEL 11 | ||
EXHIBIT A-2
|
- | DESCRIPTION OF PARCEL 10 | ||
EXHIBIT B
|
- | SITE PLAN AND LOCATION OF THE PROJECT | ||
EXHIBIT B-1
|
- | DESCRIPTION OF THE PROJECT | ||
EXHIBIT C
|
- | FLOOR PLAN OF BUILDING 11 PREMISES | ||
EXHIBIT C-1
|
- | FLOOR PLAN OF BUILDING 10 PREMISES | ||
EXHIBIT D
|
- | BASE BUILDING SHELL CONDITION | ||
EXHIBIT E
|
- | TENANT IMPROVEMENTS | ||
EXHIBIT F
|
- | OPERATING EXPENSES EXCLUSIONS | ||
EXHIBIT G
|
- | BUILDING RULES AND REGULATIONS | ||
EXHIBIT H
|
- | LETTER OF CREDIT FORM | ||
EXHIBIT I
|
- | BASE RENTAL | ||
EXHIBIT J
|
- | MARKET TERMS | ||
EXHIBIT K
|
- | FORM OF SNDA | ||
EXHIBIT L
|
- | SATELLITE DISH AGREEMENT | ||
EXHIBIT M
|
- | GUARANTY | ||
EXHIBIT N
|
- | JANITORIAL SPECIFICATIONS |
(ii)
-2-
-3-
-4-
-5-
(i) | Base Rental, Tenants Forecast Additional Rental, and Tenants Additional Rental Adjustment shall be abated as to the Building 10 Sixth Floor Premises for the period commencing on [**] [Confidential Treatment] for the Building 10 Sixth Floor Premises [**] [Confidential Treatment] thereafter; and | ||
(ii) | Base Rental (but not Tenants Forecast Additional Rental nor Tenants Additional Rental Adjustment) shall be abated for the [**] [Confidential Treatment]. The abatement provided in this subparagraph (ii) shall apply to the entire Leased Premises described in Section 1.1(b) hereof (including the Building 10 Sixth Floor Premises and the Ground Floor Suite) but shall not apply to any space added to the Leased Premises subsequent to the Effective Date nor to any renewal or extension of the initial Lease Term. |
-6-
-7-
(i) | wages and salaries, including taxes, insurance and benefits, of all on and off-site employees engaged in operations, management, maintenance, repair, replacement or access control (including, without limitation, the senior property manager and the senior accountant), as reasonably allocated by landlords and rent for, and expenses associated with, the Projects management office; | ||
(ii) | cost of all supplies, tools, equipment and materials to the extent used in operations, management, maintenance, repairs or replacements, as reasonably allocated by Landlord; | ||
(iii) | cost of all utilities, including, but not limited to, the cost of electricity, the cost of water and the cost of power for heating, lighting, air conditioning and ventilating; | ||
(iv) | the cost of trash and garbage removal, cleaning, vermin extermination and debris removal, and other services; | ||
(v) | cost related to and fees payable under all maintenance, management and service agreements, including, but not limited to, a management fee contribution equal to three percent (3%) of the gross revenues of the Buildings (and excluding any other management fee in excess thereof); | ||
(vi) | costs related to those agreements related to access control services, garage operations, window cleaning, elevator maintenance, janitorial service, pest control and landscaping maintenance; | ||
(vii) | cost of inspections, repairs, maintenance and replacements (except to the extent covered by proceeds of insurance); provided, however, any contrary provision in this Section 2.4 notwithstanding, the cost of capital repairs and replacements (other than those contemplated by Section 2.4(b) (ix)) shall be limited to an aggregate of [**] [Confidential Treatment] per event (and without subcategories) and shall be amortized over such reasonable period of time as Landlord shall determine and only the portion of such costs allocable to any calendar year (plus interest on the |
-8-
unpaid balance of such costs) may be included in the Operating Costs for such calendar year; | |||
(viii) | the cost of legal and accounting services incurred by Landlord relating to management and maintenance of the Project but not including any such expenses related to leasing of space in the Project; | ||
(ix) | amortization of the cost over the useful life as determined by GAAP (plus interest on the unpaid balance of such costs) of any system, apparatus, device, or equipment which is installed for the principal purpose of (i) reducing Operating Expenses, (ii) promoting safety, or (iii) complying with governmental requirements which are first imposed or enforced after Tenants initial occupancy of the applicable premises; | ||
(x) | the cost of all insurance, including, but not limited to, the cost of casualty, rental loss and liability insurance, and insurance on Landlords personal property, plus the cost of all deductible and co-insurance payments made by Landlord in connection therewith or in connection with any damage or casualty; provided, however, with respect to any calendar year in which a casualty loss occurs, in lieu of paying Tenants Percentage Share of the deductible in a lump sum cash payment, Tenant may amortize Tenants payment obligation [**] [Confidential Treatment]. Such amortization shall require payments of equal monthly installments sufficient to pay in full the amount amortized and the finance charge over the amortization term. To be entitled to such right of amortization, Tenant shall be obligated to provide Landlord with a letter of credit equal to the amount to be amortized, in form and substance acceptable to Landlord and issued by a financial institution acceptable to Landlord (which letter of credit may be reduced annually to the remaining balance of Tenants obligation); | ||
(xi) | amounts due under easements, operating agreements, parking operating agreements, declarations (including the Declaration), covenants or instruments encumbering Parcel 11 and Parcel 10; | ||
(xii) | subject to Section 2.4(b)(vii) with respect to capital repairs and capital replacements, cost of maintaining, striping, repairing, replacing, repaving and lighting grounds, streets, parking areas, sidewalks, curbs, walkways, landscaping, drainage and lighting facilities with respect to Parcel 10 or Parcel 11; and | ||
(xiii) | all taxes, assessments and governmental charges, whether or not directly paid by Landlord, whether federal, state, county or municipal and whether they be by taxing districts or authorities presently taxing the Land, Buildings, Project, Parking Areas and related common areas or by others subsequently created or otherwise, and any other taxes, assessments and governmental charges attributable to the Land, Buildings, Project, Parking Areas and that portion of the common areas or their operation, excluding, however, taxes and assessments attributable to the personal property of other tenants, federal and state taxes on income, death taxes, franchise taxes, and any taxes imposed or measured on or by the income of Landlord from the operation of the Buildings or imposed in connection with any change of ownership of the Buildings; provided, however, that if at any time during the Lease Term, the present method of taxation or assessment shall be so changed that the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed or imposed on |
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real estate and the improvements thereon shall be discontinued and as a substitute therefor, or in lieu of or in addition thereto, taxes, assessments, levies, impositions or charges shall be levied, assessed or imposed, wholly or partially, as a capital levy or otherwise, on the rents received from the Buildings or the rents reserved herein or any part thereof, then such substitute or additional taxes, assessments, levies, impositions or charges, to the extent so levied, assessed or imposed with respect to the Buildings, shall be deemed to be included within the Operating Costs. Tenant acknowledges and agrees that Landlord shall have the exclusive right to contest, protest and/or appeal taxes, assessments, levies, impositions on the Project, including the Buildings . Consultation, legal fees and costs resulting from any challenge of tax assessments as reasonably allocated by Landlord shall also be included in Operating Costs; provided, however, if Landlord does not intend to appeal the tax assessments with respect to either Parcel, Landlord shall do so if Tenant so requests in writing and agrees to pay all fees and costs in connection therewith (subject to reimbursement for such payments to the extent of any tax savings resulting from such appeal for the year for which the appeal was made). Tenant will be responsible for ad valorem taxes on its personal property and on the value of the Leasehold Improvements in the Leased Premises to the extent that the same exceed the Tenant Improvement Allowance (and if the taxing authorities do not separately assess Tenants Leasehold Improvements, Landlord may make a reasonable allocation of the ad valorem taxes allocated to the Buildings to give effect to this sentence). In the case of special taxes and assessments which may be payable in installments, only the amount of each installment accruing during a calendar year shall be included in the Operating Costs for such year. |
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(i) | maintain in a first class manner its two (2) existing signs on the exterior of Building 11; | ||
(ii) | install and maintain in a first class manner two (2) exterior signs on the top and sides of Building 10 similar to those on Building 11 with Tenants name (and at Tenants option, its logo) in size and appearance similar to the exterior signs on Building 11 and in locations acceptable to Landlord and Tenant; and | ||
(iii) | maintain in a first class manner the existing monument sign outside of Building 10 and Building 11. |
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(i) | Failure by Tenant to pay any Rental within five (5) days after the same becomes due hereunder; provided, however, on not more than two (2) occasions within each calendar year in the Lease Term, Landlord shall provide Tenant with written notice of such delinquency and Tenant shall have five (5) days from the date of the written notice to cure such delinquency before an event of default shall exist for Tenants failure to pay said Rental; | ||
(ii) | Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting set forth in Article VIII; | ||
(iii) | Failure by Tenant to commence to cure, immediately after receipt of notice from Landlord and thereafter diligently pursue same to completion, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease; | ||
(iv) | Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant pursuant to Section 7.8 or Section 7.9 of this Lease, within the applicable time period specified in such sections; | ||
(v) | Failure by Tenant to observe or perform any other covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided, however, if such default is curable, such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure; | ||
(vi) | The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing; | ||
(vii) | Any material default under or material breach by any guarantor of the terms of any guaranty of this Lease which continues beyond any applicable cure period specified in the Guaranty, if any; | ||
(viii) | Tenant or any guarantor of Tenants obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property; | ||
(ix) | A trustee or receiver is appointed for Tenant, any guarantor of Tenants obligations under this Lease or for a major part of either partys property and is not discharged within sixty (60) days after such appointment; and | ||
(x) | Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors is instituted (A) by Tenant or any guarantor of Tenants obligations under this Lease, or (B) against Tenant or any guarantor of |
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Tenants obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution. |
(i) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Leased Premises and correct or repair any condition which shall constitute a failure on Tenants part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease or of the Rules and Regulations now in effect or hereafter adopted or of any notice given Tenant by Landlord pursuant to the terms of this Lease, and Tenant shall fully reimburse and compensate Landlord on demand. | ||
(ii) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Leased Premises and thereupon Tenant shall vacate the Leased Premises and remove therefrom all property thereon belonging to or placed on the Leased Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Leased Premises. Any such demand, re-entry and taking possession of the Leased Premises by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord. | ||
(iii) | If Tenant does not comply with any demand pursuant to Section 7.2(b)(ii), Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Leased Premises and remove therefrom Tenant and all property belonging to or placed on the Leased Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord. | ||
(iv) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Leased Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Leased Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all costs of such reletting including but not limited to the cost of any such alterations and repairs to the Leased Premises, attorneys fees, leasing inducements, and brokerage commissions; and if this Lease shall not have been terminated, Tenant shall continue to pay all Rental and all other charges due under this Lease up to and including the date of beginning of payment of Rental by any subsequent tenant of part or all of the Leased Premises, and thereafter Tenant shall pay monthly during the remainder of the Lease Term the difference, if any, between the Rental and other charges collected from any such subsequent tenant or tenants and the Rental and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein. | ||
(v) | Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of |
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written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys fees) of recovering possession of the Leased Premises, the cost of any alteration of or repair to the Leased Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord shall have and recover from Tenant an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the Lease Term over the then reasonable rental value of the Leased Premises for the remainder of the Lease Term. |
(vi) | Landlord, may, without re-entering, retaking or resuming possession of the Leased Premises, sue for all rents provided for hereunder, including but not limited to Base Rental and Tenants Additional Rental, and all other sums, charges, payments, costs and expenses due from Tenant to Landlord hereunder, either: (i) as they become due under this Lease, or (ii) at Landlords option, Landlord may annually (on a recurring basis) accelerate the maturity and due date of the whole or any part of the Base Rental and Tenants Additional Rental for the successive twelve (12) month period during the remainder of the Lease Term, as well as all other sums, charges, payments, costs and expenses required to be paid by Tenant to Landlord hereunder, including, without limitation, damages for a breach or default of Tenants obligations hereunder in existence at the time of such acceleration, such that all sums due and payable under this Lease for each successive twelve (12) month period during the remainder of the Lease Term shall, following such acceleration, be treated as being and, in fact, due and payable in advance as of the date of such acceleration (but for any such twelve (12) month period first arising after Landlord has relet the Leased Premises or portions thereof, the acceleration of Rental for any successive twelve (12) month periods as applies solely to such relet portions of the Leased Premises, shall be limited to the acceleration of the positive difference between the Rental under this Lease for such relet portion of the Leased Premises and the actual rental proceeds collected pursuant to such reletting of the portion of the Leased Premises so relet) (all accelerated amounts shall be discounted to the then-present value at the discount rate of the Federal Reserve Bank of the district within which the Leased Premises is located). Landlord may recover and collect all such unpaid Base Rental, Tenants Additional Rental and other sums due and owing by Tenant by distress, levy, execution or otherwise. |
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(i) | Upon request of any person or entity which as the result of any of the foregoing has succeeded to the interest of Landlord in this Lease (any such person or entity being hereafter called a Successor ), Tenant will attorn to such Successor, as Landlord under this Lease, subject to the provisions of this Section 7.8(c) and Section 7.8(e), and will execute and deliver such instruments as may be necessary or appropriate to evidence such attornment within ten (10) days after receipt of a written request to do so. | ||
(ii) | No Successor shall be bound to recognize any prepayment by more than thirty (30) days of any Rental payable by Tenant hereunder, as more particularly provided in the SNDA. |
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If to Landlord: | Hines REIT Airport Corporate Center LLC or its affiliate | ||
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2800 Post Oak Boulevard, Suite 5000 | |||
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Houston, Texas 77056 | |||
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Attn: Mr. Charles Hazen | |||
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Tel: (713) 966-2608 | |||
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Fax: (713) 966-2636 |
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Hines Interests Limited Partnership | |||
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Five Ravinia Drive | |||
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Atlanta, Georgia 30346 | |||
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Attn: Mr. Michael T. Harrison | |||
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Tel: (770) 206-5300 | |||
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Fax: (770) 206-5325 | |||
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Hines Interests Limited Partnership | |||
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7300 Corporate Center Drive, Suite 100 | |||
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Miami, Florida 33126 | |||
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Attn: Property Manager | |||
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Tel: (305) 468-8200 | |||
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Fax: (305) 468-8201 | |||
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Hines Interests Limited Partnership | |||
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70 West Madison, Suite 440 | |||
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Chicago, Illinois 60602 | |||
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Attn: Mr. C. Kevin Shannahan | |||
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Tel: (312) 419-4900 | |||
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Fax: (312) 346-4180 | |||
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With a copy to: | Tew Cardenas LLP | ||
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Four Seasons Tower, 15 th Floor | |||
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1441 Brickell Avenue | |||
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Miami, Florida 33131 | |||
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Attn: Brian P. Tague, Esq. | |||
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Tel: (305) 536-8480 | |||
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Fax: (305) 536-1116 | |||
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If to Tenant: | NCL (Bahamas) Ltd. | ||
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7665 Airport Corporate Center Drive | |||
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Miami, Florida 33126 | |||
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Attn: George Chesney | |||
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Tel: (305) 436-4701 | |||
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Fax: | |||
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With a copy to: | NCL (Bahamas) Ltd. | ||
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7665 Airport Corporate Center Drive | |||
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Miami, Florida 33126 | |||
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Attn: General Counsel | |||
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Tel: (305) 436-4397 | |||
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Fax: (305) 436-4117 |
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LANDLORD:
HINES REIT AIRPORT CORPORATE CENTER LLC , a Delaware limited liability company or its affiliate |
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By: | HINES REIT PROPERTIES, L.P., | |||
a Delaware limited partnership | ||||
Its Sole Member | ||||
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By: | HINES REAL ESTATE | ||
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INVESTMENT TRUST, INC., | |||
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a Maryland corporation
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Its General Partner |
/s/ David Steinback
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By: /s/ Frank Apollo
Its Chief Accounting Officer |
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TENANT:
NCL (BAHAMAS) LTD. D/B/A NORWEGIAN CRUISE LINE, a Bermuda company |
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/s/ James Travers
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By: /s/ Colin Veitch
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a. | Tenant will provide on-floor panels and distribution as part of the Initial Improvements. Base Building electrical service will accommodate up to 7 Watts (3 Watts @ 120/208 Volts & 4 Watts @277/480 Volts) per Rentable Square Foot. | |
b. | Air conditioning main duct into the space ready for distribution by Tenant. VAV boxes with controls will be included on Tenants floor for the use of all occupants on that floor. Each VAV box will serve approximately 800 rentable square feet. | |
c. | Typical multi-tenant floor corridor walls to be completed with common area side only. | |
d. | Life Safety |
i. | In all tenant spaces sprinkler heads, in a code compliant configuration, shall be provided. All required drops, relocation of sprinkler heads or additional heads in Tenant Improvement areas will be provided and installed by Tenant at Tenants cost. Base Building fire alarm system shall have sufficient capacity for Tenant to tie in, provided that Tenants demand is reasonably within requirements of comparable office space. | ||
ii. | Extinguisher cabinets installed at each stairwell (or as otherwise required by code for an unoccupied floor). | ||
iii. | Exit signs at all stairwells. | ||
iv. | Smoke detectors, fire extinguishers, fire horns, electric door releases, speakers, cameras and any other life safety equipment required by code for an unoccupied floor. | ||
v. | Emergency lighting installed in each stairwell. |
e. | Interior face of exterior walls will be taped, floated and sanded gypsum board on metal studs to be finished by the tenant. | |
f. | Mechanical equipment rooms shall be provided and completed. | |
g. | Toilet room materials and finishes will consist of: counter tops; framed mirrors; ceramic tile floors and painted gypsum board walls; metal toilet partitions; recessed toilet accessories; and a lay-in ceiling system with grid. | |
h. | Floor Slab Design Load Capacities as per original specifications of the buildings construction (refer to base building architectural drawings). | |
i. | Building standard blinds to be provided and installed by Tenant. | |
j. | Typical multi-tenant floor corridor materials and finishes will include: gypsum board on corridor side with vinyl wall covering; two-foot by two-foot acoustical lay-in ceiling tile with exposed metal grid; and building standard carpet. | |
k. | Service Core |
i. | Stairways | ||
ii. | Electrical, telephone, and mechanical rooms. |
iii. | Finished mens and womens washrooms. | ||
iv. | Domestic water and drainage. |
l. | Core Doors |
i. | Building standard core doors for stairwells, electrical, mechanical, and telephone rooms and all washrooms. | ||
ii. | Doors finished and complete with frame, trim, hardware, locking devices, electric door releases and closers (where applicable). |
m. | Walls and Windows |
i. | Curtain wall installed and sealed. | ||
ii. | Exterior windows installed and sealed. | ||
iii. | Insulation from slab-to-slab installed and sealed. | ||
iv. | Core walls and elevator lobby walls installed, sheet rocked, taped, sanded, patched, filled, dusted, and ready to be finished by tenant. |
n. | Sleeves in core telephone rooms for telephone access. | |
o. | HVAC |
I. | TENANTS WORK |
1. | The following provisions shall apply to all Tenant Improvements (the Tenants Work ): |
(a) | Tenants Work shall be completed by Tenant in accordance with a space plan and Tenants Working Drawings which have been approved by Landlord, which approval shall not unreasonably be withheld. In construction of Tenants Work, Tenant shall comply with the terms of Landlords construction manual. Landlord shall have no responsibility for construction of any Tenants Work. | ||
(b) | The architects, engineers and contractors selected by Tenant to perform Tenants Work shall be subject to the reasonable approval of Landlord which approval shall be provided within ten (10) business days after submission. Tenants contractor shall perform Tenants Work in a first-class, workmanlike manner, using only good commercial grades of materials, in accordance with this Lease and the plans and specifications approved hereunder, Landlords insurance requirements and with all applicable governmental laws, ordinances, codes, rules and regulations, and Tenants Work shall be subject to Landlords reasonable administrative supervision. Tenants Work shall not commence until Tenants contractor has delivered to Landlord a copy of the building permit issued for the Tenants Work and evidence of insurance, both of which are satisfactory to Landlord in all respects. Upon completion of Tenants Work, Tenant shall deliver to Landlord evidence of payment, contractors affidavits and sworn statements, full and final waivers of lien from contractors and subcontractors for labor, services and materials and all other documents reasonably required by Landlord, together with record drawings, in both electronic and paper form, reflecting as built conditions of the Leased Premises. | ||
(c) | Tenant shall indemnify, defend by counsel reasonably acceptable to Landlord and hold harmless Landlord, Landlords beneficiaries, the managing agent of the Project and their respective agents, partners, members and employees and the Project of, from and against any and all liabilities, losses, costs, charges, claims, damages, liens, fees and expenses, including, without limitation, reasonable attorneys fees and expenses, relating to the Tenants Work. Landlord shall permit Tenants contractor to have reasonable access to the Leased Premises (other than the Building 10 Sixth Floor Premises which shall be available upon delivery of such space) immediately upon execution of this Lease and submission to Landlord of appropriate insurance certifications for purposes of constructing Tenants Work, provided that Tenant and Tenants contractor shall abide by the rules of the site applicable to all contractors, shall coordinate and schedule their access to the Leased Premises for labor and materials delivery through the managing agent of the Project and shall not interfere with or delay the work of any other contractor working in connection with the Project. | ||
(d) | Any entry to the Project, the Building or the Leased Premises by or on behalf of Tenant or Tenants contractor shall be under and subject to all of the terms and provisions of this Lease. To the extent not prohibited by law, all entry to the Project, the Building or the Leased Premises by or on behalf of Tenant or Tenants contractor shall be solely at the risk of Tenant and Tenants contractor, and Landlord, Landlords beneficiaries, the managing agent of the Project and their respective agents, partners and employees shall not be liable in any way, and Tenant hereby waives and releases them from any liability, for any injury or damage to or theft, robbery, pilferage, loss or loss of the use of any property of Tenant, Tenants contractor or any other person or entity or any of the Tenants Work in or about the Leased Premises or the Project which occurs during such |
Exhibit E - Page 1
period; provided, however, Landlord, Landlords beneficiaries, the managing agent of the Project and their respective agents, partners, members and employees shall be liable, and Tenant does not waive or release them from liability, for their respective gross negligence or willful misconduct which occurs during such period and causes any injury to or death of any person. The foregoing waiver and release of claim shall be in addition to and shall not limit or be limited by any other releases or waivers of claims in this Lease. |
2. | Except as provided in Paragraph 3 below, Tenant shall pay the cost of all the Tenants Work, including without limitation the cost of all items necessary or desirable to complete the Tenants Work, such as the fees and expenses arising out of the preparation of Tenants Plans and Specifications, the fees and expenses of Tenants contractor. | ||
3. | To the extent reasonably required by Tenant during the construction of Tenants Work, Tenant shall be permitted to undertake the following provided same: (i) are in accordance with all laws, (ii) are in a location determined by Landlord at its sole discretion, which designated location may be changed by Landlord at any time, and (iii) are only in place for a reasonable period of time as necessary to facilitate the Tenants Work: |
(A)park a portable construction building or trailer in the location designated by Landlord; and | |||
(B) park a storage container or semi trailer in the location designated by Landlord for purposes of temporarily storing building materials or FF&E which will be incorporated into the Leased Premises. |
Notwithstanding the foregoing, Tenant agrees that (i) at no time shall there be more than two (2) semi trailers on the designated location, (ii) all trailers shall be maintained in a neat and orderly manner, (iii) the trailers shall not affect other tenants in the Project, and (iv) if the trailers are powered, Tenant shall be solely responsible for all costs of utilities and connections associated therewith. |
II. | MINIMUM INFORMATION REQUIRED FOR THE SPACE PLAN | |
The space plan for Tenants Work shall include drawings, plans and specifications prepared by Tenants architect showing the intended design, character and finishes of the Leased Premises, including partitions and door locations, all in sufficient detail to enable the Working Drawings to be prepared. | ||
III. | MINIMUM INFORMATION REQUIRED OF INITIAL WORKING DRAWINGS | |
Floor Plans Indicating (to the extent relevant to scope of Tenants Work) : |
1. | Location and type of all partitions. | ||
2. | Location and types of all doors indicate hardware and provide keying schedule. | ||
3. | Location and type of glass partitions, windows and doors indicate framing if not part of Base Building Shell Condition. | ||
4. | Location of telephone equipment room accompanied by an approval of the telephone company if required. | ||
5. | Indicate critical dimensions necessary for construction, such as millwork, special partitions, etc. | ||
6. | Location of all electrical items outlets, switches, telephone outlets. | ||
7. | Location and type of all non-building electrical items, including lighting. |
Exhibit E - Page 2
8. | Location and type of equipment that will require special electrical requirements. Provide manufacturers specifications for use and operation. | ||
9. | Location, weight per square foot and description of any exceptionally heavy equipment or filing system exceeding 50 psf live load except in areas designed specifically for special Tenant loads. | ||
10. | Requirement for special air conditioning or ventilation. | ||
11. | Type and locations of all finishes. | ||
12. | Location and type of plumbing equipment and services. | ||
13. | Location and type of kitchen equipment and services. | ||
14. | Location of all HVAC controls, fire alarm, security and life safety equipment. | ||
15. | Location and type of all graphics and signage. | ||
16. | Location of all Tenant fixtures, furniture and equipment ( FF&E ). | ||
17. | Location and size of any floor openings required. Also include structural loading data for vaults, vault walls, slab depressions, special stairs, elevators, file rooms, libraries, etc. |
1. | All millwork with dimensions and dimensions of all equipment to be built-in. | ||
2. | Corridor entrance. | ||
3. | Bracing or support of special walls, glass partitions, etc., if desired. If not included with the Initial space plan, the Building architect will design, at Tenants expense, all support or bracing required. |
Exhibit E - Page 3
A. | repairs or other work occasioned by fire, windstorm or other casualty, the costs of which are reimbursed to Landlord by insurers or by governmental authorities in eminent domain or by others; | ||
B. | leasing commissions, broker fees, legal fees, space planning fees, costs and disbursements and other expenses incurred in connection with negotiations or disputes with tenants, other occupants, or prospective tenants of the Buildings; | ||
C. | costs incurred in renovating or otherwise improving or decorating or redecorating space for tenants or other occupants in the Buildings or vacant tenant space in the Buildings (including without limitation any allowances or inducements made to any tenants or other occupants); | ||
D. | costs of correcting defects in the construction of the Buildings (including latent defects in the Buildings) or in the Buildings equipment except that for the purposes of this subparagraph, maintenance and repair (including painting of common areas, replacement of carpet in elevator lobbies and the like, even though capital for accounting purposes) and ordinary wear and tear and use shall not be deemed defects ; | ||
E. | Landlords costs of electricity and other utilities and services furnished to tenants for which Landlord is entitled to be reimbursed by tenants (whether or not actually collected by Landlord) as a separate additional charge; | ||
F. | costs incurred by Landlord for alterations and replacements which are considered capital expenditures under generally accepted cash basis accounting principles, consistently applied, except as otherwise expressly provided in Section 2.4(b) of the Lease; | ||
G. | amortization (except as set forth in Section 2.4(b) of the Lease) and depreciation; | ||
H. | expenses in connection with services or other benefits of a type which are not building standard but which are provided to another tenant or occupant; | ||
I. | costs incurred due to the violation by Landlord or any tenant of any applicable legal requirement, building code, regulation or law existing as of the Commencement Date or costs incurred due to the Project being in violation of any such legal requirement, building code, regulation or law existing as of the Commencement Date or costs incurred due to acts of any tenant causing an increase in the rate of insurance on the Project or its contents as a result of any use other than office use; | ||
J. | overhead and profit increment paid to subsidiaries or affiliates of Landlord or its partners for services on or to the Project, to the extent that the costs of such services exceed competitive costs for such services rendered by persons or entities of similar skill, competence and experience; | ||
K. | principal and interest on any debt or rental under any ground or underlying leases or lease affecting the Project or any part thereof (other than payments which would have been incurred if Landlord were the fee owner, such as taxes and insurance); | ||
L. | any compensation paid to clerks, attendants, maintenance workers or other persons in commercial concessions operated by Landlord; |
Exhibit F - Page 1
M. | costs incurred in installing, operating and maintaining any specialty facility such as an observatory, broadcasting facility (other than the Buildings music system and life support and security system), luncheon club, athletic or recreational club, except for the express benefit of the tenants; | ||
N. | any costs and expenses relating to any off site parking facility; | ||
O. | any expenses relating to replacements of the foundation, exterior or interior structural walls, or roof of the Building; | ||
P. | Financing and refinancing costs; | ||
Q. | Advertising and promotional expenditures for marketing space in the Project; | ||
R. | Remediation and other costs required by breach of environmental laws that exist on the Commencement Date; | ||
S. | Landlords general corporate overhead and general administrative expenses; | ||
T. | Tax penalties incurred as a result of Landlords failure to make payments and/or to file any tax or informational returns when due; | ||
U. | Costs arising from the negligence or fault of other tenants or Landlord or its agents, or any vendors, contractors, or providers of materials or services selected, hired or engaged by Landlord or its agents including without limitation, the selection of Building materials; | ||
V. | Costs arising from Landlords charitable or political contributions; | ||
W. | Costs associated with the operation of the business of the partnership or entity which constitutes Landlord as the same are distinguished from the costs of operation of the Buildings. | ||
X. | Any above-standard cleaning, including, but not limited to construction cleanup or special cleanings associated with parties/events and specific tenant requirements in excess of service provided to Tenant, including related trash collection, removal, hauling and dumping; | ||
Y. | Reserves for bad debts or for future improvements, repairs, additions, etc.; and | ||
Z. | Any other costs that would not be considered as operating costs in accordance with industry standards, except as otherwise specifically provided in Section 2.4(b). |
Exhibit F - Page 2
PURPOSE : | The purpose of these Rules and Regulations is to provide each business within the Project with a quality of environment and visual appeal consistent with the high standards of a Class A office building in the Airport/West Dade submarket of Miami. |
A. | PARKING : |
B. | OUTDOOR STORAGE : |
C. | WASTE REMOVAL : |
D. | SIGN CONTROLS : |
Exhibit G - Page 1
E. | TRADE FIXTURES AND SECURITY SYSTEMS : |
F. | ON-SITE IMPROVEMENTS : |
G. | MISCELLANEOUS : |
Exhibit G - Page 2
Exhibit G - Page 3
Exhibit G - Page 4
H. | SPECIAL RULES AND REGULATIONS FOR FOOD SERVICES AREAS (INCLUDING CAFETERIA). |
Exhibit G - Page 5
Exhibit G - Page 6
Exhibit H - Page 1
Exhibit H - Page 2
(Date of Issuance January 31, 2010)
|
[**] [Confidential Treatment] | |||
|
||||
(February 1, 2010 January 31, 2011)
|
[**] [Confidential Treatment] | |||
|
||||
(February 1, 2011 January 31, 2012)
|
[**] [Confidential Treatment] | |||
|
||||
(February 1, 2012 January 31, 2013)
|
[**] [Confidential Treatment] | |||
|
||||
(February 1, 2013 January 31, 2014)
|
[**] [Confidential Treatment] | |||
|
||||
(February 1, 2014 February 28, 2019)
|
[**] [Confidential Treatment] |
Base Rent | Rentable | |||||||
Year | (Per Annum Rate per RSF) | Square Feet | ||||||
1
|
[**] [Confidential Treatment] | 208,737 | ||||||
2
|
[**] [Confidential Treatment] | 208,737 | ||||||
3
|
[**] [Confidential Treatment] | 208,737 | ||||||
4
|
[**] [Confidential Treatment] | 208,737 | ||||||
5
|
[**] [Confidential Treatment] | 208,737 | ||||||
6
|
[**] [Confidential Treatment] | 208,737 | ||||||
7
|
[**] [Confidential Treatment] | 208,737 | ||||||
8
|
[**] [Confidential Treatment] | 208,737 | ||||||
9
|
[**] [Confidential Treatment] | 208,737 | ||||||
10
|
[**] [Confidential Treatment] | 208,737 | ||||||
11
|
[**] [Confidential Treatment] | 208,737 | ||||||
12
|
[**] [Confidential Treatment] | 208,737 | ||||||
13*
|
[**] [Confidential Treatment] | 208,737 |
Notes:
|
(a) | Each Year is a calendar year of 365/6 days. The first year commences upon December 1, 2006 and ends on November 30, 2007. | ||
|
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|
(b) | In addition to Base Rent, Tenant shall also be obligated to pay Additional Rent, including, without limitation, Tenants pro rata share of Operating Expenses. | ||
|
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|
(c) | Tenant shall be entitled to an abatement of rent pursuant to Section 2.1 of this Lease. | ||
|
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|
* | This lease year is only a two-month period. |
1. | Rental for comparable premises in comparable office buildings in the Airport West/Doral market (taking into consideration, but not limited to, annual escalations; definition of net rentable area; quality; age and location of the applicable buildings; and location and/or floor level within the applicable building); | ||
2. | The rentable area of the premises being leased; | ||
3. | The length of the pertinent rental term; | ||
4. | The extent to which the work letter, rent credit, moving allowance or similar inducement given to Tenant is less than that which would have been given to a comparable new tenant in a comparable building; and | ||
5. | The quality and creditworthiness of Tenant. | ||
6. | The rights and obligations of Tenant under the Lease. | ||
If Landlord and Tenant are unable to agree upon the fair market rental value, Landlord shall select a commercial real estate broker with at least ten (10) years experience as a landlord and tenant representative in major leasing transactions in the Miami-Dade County area, who shall prepare a written determination of the Market Rent using the assumptions described in this exhibit. Such brokers determination of Market Rent shall be determinative unless Tenant disputes it as provided in the next sentence. If Tenant disputes such determination, Tenant shall deliver to Landlord written notice (a) that Tenant disputes such determination, and (b) of the identity of a commercial real estate broker selected by Tenant meeting the same qualifications as required for Landlords broker. The broker selected by Tenant shall submit his determination of the Market Rent using the assumptions described in this paragraph. If the two determinations are within five percent (5%) of each other (based on the higher number), the Market Rent shall be the average of the two. If not, then the two brokers shall appoint a third commercial real estate broker meeting the same qualifications as applicable to the other brokers as set forth in this exhibit. The third broker shall be limited in authority to selecting, in his opinion, which of the two earlier determinations best reflects the Market Rent under the assumptions set forth herein. The third broker must choose one of the two earlier determinations and, upon doing so, the third brokers determination shall be the controlling determination of the Market Rent. Each party shall pay the costs and fees of the broker it selected; if a third broker is selected, each party shall pay fifty percent (50%) of said third brokers costs and fees. |
Exhibit K - Page 1
If to Tenant, to the attention of: | ||||||
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and | |||||
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If to Lender, to the attention of: | ||||||
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Exhibit K - Page 2
Exhibit K - Page 3
LENDER: | ||||||||||
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LEHMAN BROTHERS BANK, FSB , | ||||||||||
a federal stock savings bank | ||||||||||
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By: | |||||||||
Print Name
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Name: | |||||||||
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||||||||||
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Title: | |||||||||
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||||||||||
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||||||||||
Print Name
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||||||||||
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STATE OF
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) | |||||
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) SS: | |||||
COUNTY OF
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) |
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Notary Public | |||
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Type, Print or Stamp Name | |||
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My Commission Expires: |
Exhibit K - Page 4
TENANT: | ||||||||||
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NCL (BAHAMAS) LTD. D/B/A NORWEGIAN | ||||||||||
CRUISE LINE, | ||||||||||
A Bermuda Company | ||||||||||
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||||||||||
/s/
James Travers
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By: | /s/ Colin Veitch | ||||||||
Print Name
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James Travers | Name: | Colin Veitch | |||||||
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||||||||||
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Title: | President & CEO | ||||||||
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||||||||||
/s/
George Chesney
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||||||||||
Print Name
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George Chesney | |||||||||
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STATE OF
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) | |||||
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) SS: | |||||
COUNTY OF
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) |
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/s/ Sandra Dominguez | |||||
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Notary Public | |||||
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Sandra Dominguez | |||||
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Type, Print or Stamp Name | |||||
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My Commission Expires: |
Feb. 16, 2010
Commission #DD 519729 |
Exhibit K - Page 5
LANDLORD: | ||||||||||||
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HINES REIT AIRPORT CORPORATE CENTER LLC , | ||||||||||||
a Delaware limited partnership, its sole member | ||||||||||||
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By: | Hines Real Estate Investment Trust, | |||||||||||
Inc., a Maryland corporation, | ||||||||||||
its general partner | ||||||||||||
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||||||||||||
/s/ David Steinback
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By: | /s/ Charles N. Hazen | ||||||||||
Print Name
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David Steinback | Name: | Charles N. Hazen | |||||||||
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Title: | President | ||||||||||
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||||||||||||
/s/ Todd R. Haines
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||||||||||||
Print Name
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Todd R. Haines | |||||||||||
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STATE OF
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) | |||||
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) SS: | |||||
COUNTY OF
|
) |
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/s/ Melanie Greeley | |||
|
Notary Public | |||
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Melanie Greeley | |||
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Type, Print or Stamp Name | |||
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My Commission Expires: 7/19/08 |
Exhibit K - Page 6
Exhibit M - Page 3
Exhibit M - Page 4
Exhibit M - Page 5
GUARANTOR: | ||||||
|
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NCL CORPORATION LTD.,
a Bermuda corporation |
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By: | /s/ Colin Veitch | ||||
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Name: |
Colin Veitch
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Title: |
President & CEO
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|
Exhibit M - Page 6
- | Empty and clean (when necessary) all waste receptacles. Transport waste to the loading dock via the freight elevator. Replace all liners nightly. Adhere to recycling program as specified by the Property Manager | ||
- | Hand dust or wipe clean with damp or treated cloth all horizontal surfaces, desks, chairs, files etc. Do not rearrange materials on desks. | ||
- | Clean and sanitize drinking fountains, follow with stainless steel cleaner as needed taking care not to leave any oily residue. | ||
- | Spot clean all windows and partition glass. | ||
- | Vacuum all carpet areas. Broom sweep all area rugs. (Do not pull vacuum cords around corners.) Edges should be either swept or vacuumed with appropriate edge cleaning tool, as required. | ||
- | Remove all finger marks and smudges from all vertical surfaces taking care not to mar material finishes. | ||
- | Dust mop and spot clean all tiled areas. | ||
- | Damp wash and wipe dry all plastic or formica desk tops. | ||
- | Sweep internal stairways and vacuum, if carpeted. Dust handrails and vertical surfaces. |
- | Damp mop floors where spillage occurred or dirt tracked in. | ||
- | Spot clean carpet areas. | ||
- | Dust light fixtures no less than annually. | ||
- | Vacuum/dust all perimeter slot diffusers on an annual basis. | ||
- | Clean all air vent grills. | ||
- | Wash windowsills. | ||
- | Dust fire extinguishers/fire extinguisher cabinets. | ||
- | Dust all doors. | ||
- | Spot clean door frames. |
Exhibit N - Page 1
- | Empty and clean (when necessary) all waste receptacles transport waste paper and rubbish to the loading dock. Replace all liners nightly. | ||
- | Wash and disinfect all basins, urinals and bowls using nonabrasive cleaners to remove stains and clean undersides of rim on urinals and bowls. Wash both sides of toilet seats. | ||
- | Clean all mirrors, bright work and enameled surfaces. | ||
- | Damp wipe all partitions, tile walls, doors and outside surfaces of all dispensers and receptacles. Damp wipe all lavatory tops and remove water spots from wall surfaces next to dispensers/receptacles. Spot clean around light fixtures. | ||
- | Clean flushometers, piping and other metal. Do not leave an oily finish. | ||
- | Fill toilet tissue, soap, towel and sanitary napkin dispensers. Do not place any extra supplies on top of dispenser or counter top. Do not install adjacent rolls of toilet paper in opposite direction. | ||
- | Sweep, wet mop and thoroughly rinse floor. Clean all corners and edges to prevent dirt buildup. Do not leave standing water on the floor. Dump at least one gallon of water down restroom floor drain and wipe clean drain grill. | ||
- | Spot clean door frames as necessary. | ||
- | Clean and sanitize mouths of all trashcans and sanitary dispensers. |
- | Scrub all floors at least monthly...intent is to prevent buildup of dirt in grout. | ||
- | Thoroughly wash all partitions at least monthly. | ||
- | Dust all walls at least quarterly. | ||
- | Wash all walls at least annually. | ||
- | Clean light fixtures at least annually. | ||
- | Clean air vent grills and louvers at least quarterly. | ||
- | Clean soap dispensers. |
- | Spot clean walls taking care not to damage any special surfaces. | ||
- | Dust or damp wipe metal finishes and return panels. | ||
- | Clean and polish all thresholds. | ||
- | Clean edges and vacuum carpet floors. | ||
- | Tiles surfaces: sweep & damp mop. Do not use excessive water. | ||
- | Spot clean hall side of doors, frame and hall call stations. | ||
- | Service elevators sweep and damp mop floors. |
- | Dust ceiling. | ||
- | Wash hall side of doors and frame. | ||
- | Dust woodwork. | ||
- | Clean/wash/shampoo mats. |
Exhibit N - Page 2
- | Damp mop tile surfaces. Do not use excessive water. | ||
- | Clean all edges and corners. | ||
- | Clean glass doors. | ||
- | Clean and polish all transoms, metal doors, door frames, etc. | ||
- | Dust fixtures, furnishings and other horizontal surfaces. | ||
- | Clean pay phones. | ||
- | Spot clean fingerprints off directory board. Dust interior panels. | ||
- | Clean surfaces of security console. | ||
- | Spot clean all walls. |
- | Dust or wash wall surfaces as appropriate. | ||
- | Dust woodwork. | ||
- | Clean all air diffusers/grills. |
- | Sweep/vacuum/damp mop as indicated by type of flooring. Spot clean carpet | ||
- | Spot clean walls | ||
- | Remove any clearly marked trash and debris | ||
- | Clean and sanitize drinking fountains, follow with stainless steel cleaner, as needed, taking care not to leave any oily residue. | ||
- | Spray wipe exterior finish of elevator call fixtures. Mailroom | ||
- | Remove fingerprints and smudges from mailboxes, overnight delivery drop boxes, countertops, signs etc. |
- | Dust all suite entrance doors, apply oil to wood doors no less than annually. |
- | Police for trash. Sweep/spot mop no less than weekly. | ||
- | Spray clean handrails. | ||
- | Dust light fixtures not less than quarterly. | ||
- | Remove fingerprints and smudges from doors and door frames. | ||
- | Clean/wash transoms high and low. |
Exhibit N - Page 3
- | Sweep and damp mop nightly. | ||
- | Clean/wash transoms high and low. | ||
- | Clean prints and marks from doors. | ||
- | Spray wipe exterior finish of elevator call fixtures. | ||
- | Spot clean walls. | ||
- | Clean elevator entrance frames. |
- | Maintain all janitorial areas in a clean, neat and orderly condition at all times. | ||
- | Maintain office and staging area in same fashion as tenant office areas | ||
- | Keep all paper supplies on pallets. | ||
- | Utilize shelving for chemicals. | ||
- | Re-stage brooms, mops and other equipment on a wall hanger at the end of a shift. |
- | Place all trash and debris in compactor. | ||
- | Sweep dock area. Spot clean spills. Damp mop dock area weekly. | ||
- | Clean and polish ash urn replace sand as necessary. |
- | Police for trash all areas including planting beds and along curb. | ||
- | Straighten furniture. | ||
- | Remove gum |
Exhibit N - Page 4
- | Re-stock mens and womens restrooms twice daily. Wipe down and clean all lavatory tops and fixtures. Patrol restrooms, removing paper/trash on floor. Report problems to Property Management Office. | ||
- | Remove all smudges and fingerprints from metal surfaces of interior cab. | ||
- | Constantly survey the lobby, common areas and sidewalk to insure cleanliness. Clean up spills. Spot mop as required. Remove fingerprints from door glass and metal surfaces at least three (3) times daily. Clean trash from tree grates and planters. | ||
- | Clean exterior entrance glass and entrance doors at least three (3) times daily. | ||
- | Patrol loading dock hallway, loading dock area, mailroom, and other backstage areas for trash at least two (2) times daily. | ||
- | Perform all special cleaning needs of individual tenants as authorized by the Property Manager. | ||
- | Perform all specific duties as detailed in the job description and any others as requested from time to time by the property management staff. | ||
- | Maintain paper supply inventory for submittal to Property Manager. - Patrol smoking areas for trash. Empty ash urns. Vacuum as necessary throughout the day. | ||
- | Keep parking signage, monument signage and exterior lights through the office park wiped down as needed. | ||
- | Keep compactor(s) clean and free of standing trash. Call for trash and compactor pick-up as necessary. |
Note: | Janitorial specifications are subject to change from time to time but any changes will not result in services below that of Comparable Buildings. |
Exhibit N - Page 5
TENANT: | ||
NCL (BAHAMAS) LTD., a Bermuda company
D/B/A NORWEGIAN CRUISE LINE |
||
Witness: /s/ James Travers
|
By: /s/ Mark E. Warren
|
|
/s/ George Chesney
|
Title: Executive Vice President & General Counsel | |
LANDLORD: | ||
HINES REIT AIRPORT CORPORATE CENTER LLC
,
a Delaware limited liability company or its affiliate |
||
By: HINES REIT PROPERTIES, L.P., | ||
INVESTMENT TRUST, INC., a Maryland corporation Its Sole Member | ||
By: HINES REAL ESTATE | ||
INVESTMENT TRUST, INC.,
Its General Partner |
||
Witness: /s/ David Steinback
|
By: /s/ Frank Apollo
Its: Chief Accounting Officer |
|
/s/ Todd Haines
|
|
1. | I have reviewed this annual report on Form 20-F of NCL Corporation 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 company as of, and for, the periods presented in this report; | |
4. | The companys 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)) for the company 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 company, 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. | Evaluated the effectiveness of the companys 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 | ||
c. | Disclosed in this report any change in the companys internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the companys internal control over financial reporting; and |
5. | The companys other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the companys auditors and the audit committee of the companys 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 companys 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 companys internal control over financial reporting. |
Date: March 5, 2007 | By: | /s/ David Colin Sinclair Veitch | ||
Name: | David Colin Sinclair Veitch | |||
Title: | President and Chief Executive Officer | |||
1. | I have reviewed this annual report on Form 20-F of NCL Corporation 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 company as of, and for, the periods presented in this report; | |
4. | The companys 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)) for the company 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 company, 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. | Evaluated the effectiveness of the companys 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 | ||
c. | Disclosed in this report any change in the companys internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the companys internal control over financial reporting; and |
5. | The companys other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the companys auditors and the audit committee of the companys 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 companys 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 companys internal control over financial reporting. |
Date: March 5, 2007 | By: | /s/ Bonnie S. Biumi | ||
Name: | Bonnie S. Biumi | |||
Title: | Executive Vice President and Chief Financial Officer | |||
/s/ David Colin Sinclair Veitch | ||||
Dated: March 5, 2007 | Name: | David Colin Sinclair Veitch | ||
Title: | President and Chief Executive Officer | |||
/s/ Bonnie S. Biumi | ||||
Dated: March 5, 2007 | Name: | Bonnie S. Biumi | ||
Title: | Executive Vice President and Chief Financial Officer | |||