Exhibit 10.1
Execution Version
[*]: THE IDENTIFIED INFORMATION HAS
BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED
Dated 4 June
2020
AMENDMENT TO TERM LOAN FACILITY
EXPLORER
NEW BUILD, LLC
as Borrower
and
NCL CORPORATION LTD.
as Guarantor
and
SEVEN SEAS CRUISES S. DE R.L.
as Charterer
and Shareholder
and
The Banks
and Financial Institutions
LISTED IN SCHEDULE 1
as Lenders
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
SOCIÉTÉ GÉNÉRALE
HSBC BANK PLC
KFW IPEX-BANK GMBH
as Joint Mandated Lead Arrangers
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
as Agent
and SACE Agent
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
as Security Trustee
SUPPLEMENTAL
AGREEMENT
relating to a facility agreement originally
dated 31 July 2013 (as amended and restated pursuant to
an amendment and restatement agreement dated 31 October 2014) in respect
of the part financing
of the passenger cruise ship m.v. "SEVEN SEAS EXPLORER"
Index
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Clause
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Page
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1
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Definitions and Interpretation
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2
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2
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Conditions Precedent and Conditions Subsequent
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4
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3
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Representations
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5
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4
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Acknowledgment and Acceptance of the Principles
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5
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5
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Amendments to Facility Agreement and other Finance Documents
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5
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6
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New Covenants
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22
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7
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Further Assurance
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26
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8
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Costs and Expenses
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26
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9
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Notices
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26
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10
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Counterparts
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26
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11
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Signing Electronically
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26
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12
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Governing Law
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26
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13
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Enforcement
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27
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Schedules
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Schedule
1 Lenders and Commitments
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28
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Schedule
2 Conditions Precedent
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30
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Schedule
3 Repayment Schedule
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32
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Schedule
4 Information Package
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34
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Schedule
5 Form of Effective Date Certificate
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35
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Execution
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Execution
Pages – Explorer – Supplemental Agreement
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36
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THIS
AGREEMENT is made on 4 June 2020
Parties
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(1)
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EXPLORER NEW BUILD, LLC, a limited liability company formed in the state of Delaware whose
registered office is at Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware, 19808 United States
of America as borrower (the "Borrower")
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(2)
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NCL CORPORATION LTD., an exempted company incorporated under the laws of Bermuda with its
registered office at Cumberland House, 9th Floor, 1 Victoria Street, Hamilton HM11, Bermuda (the "Guarantor")
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(3)
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SEVEN SEAS CRUISES S. DE R.L a Panamanian limited company
(“sociedad de responsabilidad limitada”) organised and existing under the laws of the Republic of Panama, having
its office in the Republic of Panama with its Resident Agent being Arias, Fabrega & Fabrega with address at Plaza 2000 Building,
16th Floor, 50th Street, Panama, Republic of Panama and registered at the Mercantile Section of the Panama Public Registry at Microjacket
876, Document 1238212 since 7 November 2007 (the "Charterer" and "Shareholder")
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(4)
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THE FINANCIAL INSTITUTIONS listed in Schedule 1 Lenders and Commitments) as lenders
(the "Lenders")
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(5)
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CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France, SOCIÉTÉ GÉNÉRALE
a French société anonyme having its registered office located at 29 Boulevard Haussmann, 75009 Paris under number
Siren 552 120 222 at the Registre du Commerce et des Sociétés of Paris, France, HSBC
BANK PLC of Level 2, 8 Canada Square, London, E14 5HQ, United Kingdom and KFW IPEX-BANK GMBH of Palmengartenstr, 5-9
60325, Frankfurt, as mandated lead arrangers (the "Mandated Lead
Arrangers")
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(6)
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CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as agent and SACE agent (the "Agent"
and the "SACE Agent")
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(7)
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CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as security trustee (the "Security
Trustee")
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Background
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(A)
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By the Facility Agreement, the Lenders agreed to make available to the Borrower a facility of the
Dollar Equivalent of up to EUR 299,866,962 for the purpose of assisting the Borrower in financing (i) payment under the Shipbuilding
Contract of all or part of 80% of the Final Contract Price up to the Eligible Amount, (ii) payment to the Borrower of the Dollar
Equivalent of 100% of the first instalment of the SACE Premium already paid direct to SACE on or before 30 days following the issuance
of the SACE Insurance Policy and (iii) payment to SACE of the Dollar Equivalent of 100% of the second instalment of the SACE Premium
payable on the original Drawdown Date.
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(B)
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Due to the unprecedented and extraordinary impacts of the Covid-19 pandemic on the cruise sector
and cruise operators, SACE S.p.A. has informed the cruise operators of its availability to evaluate certain measures (the "Temporary
Measures") applicable in relation to certain qualifying loan agreements in order to assist companies which
are financially sound but dealing with the impact of the temporary but unprecedented Covid-19 pandemic; the possibility to access
to such measures is subject, amongst other things, to certain principles dated 15 April 2020 for
cruise lines offered by SACE (as further defined below, the "Principles").
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(C)
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Pursuant to the consent request letter dated 18 April 2020, the
Borrower and the Guarantor notified the Agent and the SACE Agent of the wish to benefit from the Temporary Measures in relation
to certain loan agreements listed therein, including the Facility Agreement, and requested, amongst other things, the deferral
of repayments of principal under the Facility Agreement for a period of one year from 1 April 2020 to 31 March 2021 (the "Borrower
Request").
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(D)
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On 25 May 2020, the Agent (for and on behalf of the Lenders)
and SACE provided their consent to part of the Borrower Request in accordance with and subject to certain conditions as set out
in this supplemental agreement (the "Agreement").
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(E)
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The Parties have agreed to enter into this Agreement for the purposes of, inter alia, documenting
the required amendments identified in the Principles.
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Operative
Provisions
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1
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Definitions and Interpretation
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In this Agreement:
"2020
Deferral Fee Letters" means any letter between the Agent
and any Obligor which sets out the fees payable in connection with the arrangements contemplated by this Agreement.
"2020
Deferral Prepayment Event" means the occurrence of any event entitling the Agent to exercise any rights granted to it
pursuant to Clause 6.5 (Breach of new covenants or the Principles) of this Agreement, including, without limitation, the
ability to cancel any part, or demand the immediate repayment of, the 2020 Deferral Tranche and to terminate the waiver of the
financial covenants granted pursuant to clause 11.15 of the Guarantee as amended by this Agreement.
"2020
Deferral Final Repayment Date" means the Repayment Date falling 3 years and six months after the 2020 Deferral Repayment
Starting Point, or, if earlier, the date on which the 2020 Deferral Tranche has been repaid or prepaid in full.
"2020
Deferral Repayment Starting Point" means
the date of the first Repayment Date falling after 31 March 2021, namely 30 June 2021.
"2020
Deferral Tranche" means the part of the Loan made or to be made available (or deemed made or to be deemed to be made available)
to the Borrower to finance the aggregate of the 2020 Deferred Repayment Instalments and the related premium payable to SACE (amounting
to [*] per cent. ([*]%) of the Total Commitments as of 1 April 2020) in a principal amount not
exceeding thirty-one million, seven hundred and ninety-five thousand, five hundred and one Dollars and eighty-six Cents ($31,795,501.86).
"2020
Deferred Repayment Instalments" means the repayment instalments in principal due during the Deferral Period as set out
pursuant to Schedule 3 (Repayment schedule).
"2020
Finance Documents" means this Agreement, the Mortgage Addendum and each 2020 Deferral Fee Letter.
"Amended
Facility Agreement" means the Facility Agreement as amended and supplemented by this Agreement.
"Deferral
Period" means the period from 1 April 2020 to 31 March 2021.
"Effective
Date" means the date on which the Agent notifies the Borrower, the other Creditor Parties and SACE as to the satisfaction
of the conditions precedent as provided in Clause 2.1(a).
"Facility
Agreement" means the facility agreement dated 31 July 2013 (as amended and restated pursuant to an amendment and
restatement agreement dated 31 October 2014) and made between, amongst others, (i) the Borrower, (ii) the Lenders, (iii) the Mandated
Lead Arrangers, (iv) the Agent and the SACE Agent and (v) the Security Trustee.
"Information
Package" means the information package in connection with the "Debt Holiday" application in the form
set out in Schedule 4 (Information Package) to this Agreement, submitted, or to be submitted (as the case may be), by the
Borrower (or the Guarantor on its behalf) in order to obtain the benefit of the measures provided for in the Principles for the
purpose of the Facility Agreement (as amended) and certain of the Borrower’s and the Guarantor’s obligations under
the Facility Agreement.
"Mortgage
Addendum" means the addendum to the Mortgage in the agreed form.
"Obligors"
means the Borrower, the Guarantor, the Charterer and the Shareholder.
"Party"
means a party to this Agreement.
"Principles"
means the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April
2020, which sets out certain key principles and parameters relating to the qualifying Loan Agreements (as defined therein) and
being applicable to SACE-covered loan agreements such as the Facility Agreement.
"SACE"
means SACE S.p.A., an Italian joint stock company (società per azioni) with a sole shareholder, whose registered
office is located at Piazza Poli 37/42, 00187 Rome, Italy and registered with the Companies Registry of Rome under number 05804521002.
Defined expressions in the
Facility Agreement and, with effect from the Effective Date, the Amended Facility Agreement, shall have the same meanings when
used in this Agreement unless the context otherwise requires or unless otherwise defined in this Agreement.
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1.3
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Application of construction and interpretation provisions of Facility Agreement
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Clause 1.2 (construction
of certain terms) of the Facility Agreement applies to this Agreement as if it were expressly incorporated in it with any necessary
modifications.
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1.4
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Agreed forms of new, and supplements to, Finance Documents
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References in Clause 1.1 (Definitions)
to any new or supplement to a Finance Document being in "agreed form" are to that Finance Document:
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(a)
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in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower
and the Agent); or
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(b)
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in any other form agreed in writing between the Borrower, the Agent and the Lenders acting with
the authorisation of the Majority Lenders.
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1.5
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Designation as a Finance Document
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The Borrower and the Agent
designate this Agreement as a Finance Document.
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(a)
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Unless provided to the contrary in a Finance Document, a person who is not a Party has no right
under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the
benefit of any term of this Agreement other than SACE, who may enforce or to enjoy the benefit of and rely on the provisions of
this Agreement and the Amended Facility Agreement subject to the provisions of the Third Parties Act.
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(b)
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Notwithstanding any term of any Finance Document, the consent of any person who is not a Party
(other than SACE) is not required to rescind or vary this Agreement at any time.
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(c)
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For the avoidance of doubt and in accordance with clause 33.4 (Third party rights) of the
Facility Agreement, nothing in this Clause 1.6 (Third party rights) shall limit or prejudice the exercise by SACE of its
rights under this Agreement or the Finance Documents in the event that such rights are subrogated or assigned to it pursuant to
the terms of the SACE Insurance Policy.
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2
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Conditions Precedent and Conditions Subsequent
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2.1
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The Effective Date cannot occur unless:
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(a)
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the Agent has received (or on the instructions of all the Lenders, waived receipt of) all of the
documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent;
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(b)
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save as disclosed in writing to the Agent and SACE prior to the
date of this Agreement, the representations and warranties contained in Clause 3 (Representations) are true and correct
on, and as of, each such time as if each was made with respect to the facts and circumstances existing at such time;
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(c)
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save as disclosed in writing to the Agent and SACE prior to the
date of this Agreement, no Event of Default, event or circumstance specified in clause 18 (Events of Default) which would
(with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination
of any of the foregoing) be an Event of Default, event resulting in mandatory prepayment of the Loan pursuant to clause 16.3 (Mandatory
prepayment – sale and total loss) and clause 16.4 (Mandatory prepayment – SACE insurance policy) of the
Facility Agreement or 2020 Deferral Prepayment Event shall have occurred and be continuing or would result from the amendment of
the Facility Agreement pursuant to this Agreement; and
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(d)
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the Agent is satisfied that the Effective Date can occur and have not provided any instructions
to the contrary informing the Parties that the Effective Date cannot occur.
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2.2
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Upon fulfilment or waiver of the conditions set out in Clause 2.1 above, the Agent shall provide
the Borrower and the Lenders with a copy of the executed certificate in the form set out in Schedule 5 (Form of Effective Date
Certificate) confirming that the Effective Date has occurred and such certificate shall be binding on all Parties.
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2.3
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Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary
before the Agent provides the certificate described in Clause 2.2 above, the Creditor Parties authorise (but do not require) the
Agent to execute and provide such certificate. The Agent shall not be liable for any damages, costs or losses whatsoever as a result
of giving any such certificate.
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3.1
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Facility Agreement representations
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On the date of this Agreement
and on the Effective Date, each Obligor that is a party to the Facility Agreement makes each of the representations and warranties
as set out in clause 11 (representations and warranties) of the Facility Agreement as amended and supplemented by this Agreement
and updated with appropriate modifications to refer to the 2020 Finance Documents.
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3.2
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Finance Document representations
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Each Obligor makes the representations
and warranties set out in the Finance Documents (other than the Facility Agreement) to which it is a party, as amended and supplemented
by this Agreement and updated with appropriate modifications to refer to this Agreement and, where appropriate, the Mortgage Addendum,
by reference to the circumstances then existing on the date of this Agreement.
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4
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Acknowledgment and Acceptance of the Principles
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Each
Obligor confirms its acknowledgment to the Principles and full acceptance of all terms, requirements and conditions thereunder.
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5
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Amendments to Facility Agreement and other Finance Documents
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5.1
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Specific amendments to the Facility Agreement
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With effect on and from the
Effective Date the Facility Agreement shall be, and shall be deemed by this Agreement to be, amended as follows, so that, inter
alia, the principal amount of the Loan will not be increased (save for the premium to be advanced in accordance with Clause
5.1(e) below) but the repayment terms of, and the interest rate applicable to the relevant part of the Loan will be changed to
reflect the repayment profile and interest terms for the 2020 Deferral Tranche on the basis set out in this Agreement:
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(a)
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In clause 1.1 (Definitions) of the Facility Agreement, the following definitions shall be
added in alphabetical order:
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(i)
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"2020 Amendment Agreement"
means the amendment to this Agreement dated 4 June 2020 between, amongst others, the
Borrower, the Agent and the SACE Agent.
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(ii)
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"2020 Deferral Commitment" means in relation to any Lender listed in Schedule
1 to the 2020 Amendment Agreement, the amount in Dollars expressed as a percentage set opposite its name under the heading "Commitment"
and the amount of any other commitment attributable to it (including the related premium payable to SACE) under this Agreement
in respect of the 2020 Deferral Tranche.
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(iii)
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"2020 Deferral Effective Date" has the meaning given to the term Effective Date
in the 2020 Amendment Agreement.
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(iv)
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"2020 Deferral Fee Letters"
means any letter between the Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated
by the 2020 Amendment Agreement.
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(v)
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2020 Deferral Final Repayment Date" means the Repayment Date falling 3 years and six
months after the 2020 Deferral Repayment Starting Point, or, if earlier, the date on which the 2020 Deferral Tranche has been repaid
or prepaid in full.
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(vi)
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"2020 Deferral Prepayment Event" means the occurrence of any event entitling the
Agent to exercise any rights granted to it pursuant to Clause 6.5 (Breach of new covenants or the Principles) of the 2020
Amendment Agreement, including, without limitation, the ability to cancel any part, or demand the immediate repayment of, the 2020
Deferral Tranche and to terminate the waiver of the financial covenants granted pursuant to clause 11.15 of the Guarantee as amended
by the 2020 Amendment Agreement.
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(vii)
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"2020 Deferral Repayment
Starting Point" means the date of the first Repayment Date falling after 31 March 2021, namely 30
June 2021.
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(viii)
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"2020 Deferral Tranche" means the part of the Loan made or to be made available
to the Borrower to finance the aggregate of the 2020 Deferred Repayment Instalments and the related premium payable to SACE (amounting
to [*] per cent. ([*]%) of the Total Commitments as of 1 April 2020) in a principal amount not
exceeding thirty-one million, seven hundred and ninety-five thousand, five hundred and one Dollars and eighty-six Cents ($31,795,501.86).
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(ix)
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"2020 Deferred Repayment Instalments" means the repayment instalments due during
the Deferral Period as set out pursuant to Schedule 3 (Repayment schedule).
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(x)
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"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework
for the recovery and resolution of credit institutions and investment firms.
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(xi)
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"Bail-In Action"
means the exercise of any Write-down and Conversion Powers.
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(xii)
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"Bail-In Legislation"
means:
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(i)
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in relation to an EEA Member Country which has implemented, or which at any time implements, Article
55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
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(ii)
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in relation to any state other than such an EEA Member Country or (to the extent that the United
Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires
contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
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(xiii)
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"Deferred Costs Percentage" means 0.054% p.a.
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(xiv)
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"Deferral Period" means the period from 1 April 2020 to 31 March 2021.
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(xv)
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"Deferral Repayment Date" has the meaning given to such term in Clause 5.5 (Repayment
of 2020 Deferral Tranche).
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(xvi)
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"Deferral Repayment Instalments" has the meaning given to such term in Clause
5.5 (Repayment of 2020 Deferral Tranche).
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(xvii)
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"EEA Member Country"
means any member state of the European Union, Iceland, Liechtenstein and Norway.
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(xviii)
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"EU Bail-In Legislation Schedule"
means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
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(xix)
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"Funding Rate"
means any individual rate notified by a Lender to the Agent pursuant to sub-paragraph (i) of paragraph (e) of Clause 6.10 (Cost
of funds).
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(xx)
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"Interpolated Screen Rate"
means, in relation to the Loan or any part of the Loan, the rate which results from interpolating on a linear basis between:
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(i)
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the applicable Screen Rate for the longest period (for which that Screen Rate is available) which
is less than the Interest Period of the Loan or that part of the Loan; and
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(ii)
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the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which
exceeds the Interest Period of the Loan or that part of the Loan,
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each as
of the Specified Time for Dollars.
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(xxi)
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"Principles" means
the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April 2020, which sets out certain key
principles and parameters relating to the qualifying Loan Agreements (as defined therein) and being applicable to SACE-covered
loan agreements such as this Agreement.
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(xxii)
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"Reference Bank Rate"
means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the
Reference Banks:
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(A)
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the Reference Bank is a contributor to the Screen Rate; and
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(B)
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it consists of a single figure,
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as the rate
(applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to
submit to the relevant administrator; or
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(ii)
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in any other case, as the rate at which the relevant Reference Bank could fund itself in Dollars
for the relevant period with reference to the unsecured wholesale funding market.
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(xxiii)
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"Reference Bank Quotation"
means any quotation supplied to the Agent by a Reference Bank.
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(xxiv)
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"Reference Banks"
means such entities as may be appointed by the Agent in consultation with the Borrower.
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(xxv)
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"Relevant Nominating Body" means any applicable central bank, regulator or other
supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request
of, any of them or the Financial Stability Board.
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(xxvi)
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"Replacement Benchmark" means a benchmark rate which is:
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(i)
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formally designated, nominated or recommended as the replacement for a Screen Rate by:
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(A)
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the administrator of that Screen Rate (provided that the market or economic reality that such benchmark
rate measures is the same as that measured by that Screen Rate); or
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(B)
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any Relevant Nominating Body,
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and if replacements
have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Benchmark"
will be the replacement under paragraph (B) above;
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(ii)
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in the opinion of the Majority Lenders and the Borrower, generally accepted in the international
or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
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(iii)
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in the opinion of the Majority Lenders and the Borrower, an appropriate successor to a Screen Rate.
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(xxvii)
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"Resolution Authority"
means any body which has authority to exercise any Write-down and Conversion Powers.
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(xxviii)
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"Screen Rate"
means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over
the administration of that rate) for Dollars for the relevant period displayed (before any correction, recalculation or republication
by the administrator) on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that
rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson
Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant
rate after consultation with the Borrower.
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(xxix)
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"Screen Rate Contingency Period"
means fifteen (15) Business Days.
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(xxx)
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"Screen Rate Replacement Event"
means, in relation to a Screen Rate:
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(i)
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the methodology, formula or other means of determining that Screen Rate has, in the opinion of
the Majority Lenders and the Borrower materially changed;
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(1)
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the administrator of that Screen Rate or its supervisor publicly announces that such administrator
is insolvent; or
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(2)
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information is published in any order, decree, notice, petition or filing, however described, or
filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of that Screen Rate is insolvent,
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provided
that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;
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(B)
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the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide
that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that
Screen Rate;
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(C)
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the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate
has been or will be permanently or indefinitely discontinued; or
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(D)
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the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no
longer be used; or
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(iii)
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the administrator of that Screen Rate determines that that Screen Rate should be calculated in
accordance with its reduced submissions or other contingency or fallback policies or arrangements and either:
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(A)
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the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority
Lenders and the Borrower) temporary; or
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(B)
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that Screen Rate is calculated in accordance with any such policy or arrangement for a period no
less than the Screen Rate Contingency Period; or
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(iv)
|
in the opinion of the Majority Lenders and the Borrower, that Screen Rate is otherwise no longer
appropriate for the purposes of calculating interest under this Agreement.
|
|
|
(xxxi)
|
"Specified Time"
means a day or time determined in accordance with the following:
|
|
|
(i)
|
if LIBOR is fixed, the Quotation Day as of 11:00 am London time; and
|
|
|
(ii)
|
in relation to a Reference Bank Rate calculated by reference to the available quotations in accordance
with Clause 6.8 (Calculation of Reference Bank Rate), noon on the Quotation Day.
|
|
|
(xxxii)
|
"UK Bail-In Legislation" means (to the extent that the United Kingdom is not an
EEA Member Country which has implemented, or implements, Article 55 BRRD) Part 1 of the United Kingdom Banking Act 2009 and any
other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms
or other financial institutes or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
|
|
|
(xxxiii)
|
"Write-down and Conversion Powers"
means:
|
|
|
(i)
|
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time
to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
|
|
|
(ii)
|
in relation to any other applicable Bail-In Legislation:
|
|
|
(A)
|
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those
powers; and
|
|
|
(B)
|
any similar or analogous powers under that Bail-In Legislation; and
|
|
|
(iii)
|
in relation to any UK Bail-In Legislation:
|
|
|
(A)
|
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of
those powers; and
|
|
|
(B)
|
any similar or analogous powers under that UK Bail-In Legislation.
|
|
|
(b)
|
In clause 1.1 (Definitions) of the Facility Agreement, the following definitions shall be
amended as follows:
|
|
|
(i)
|
the definition of "Commitment" shall be amended by adding the following wording after
the wording "set opposite its name in Schedule 1":
|
"(including,
in relation to a Lender, its 2020 Deferral Commitment)";
|
|
(ii)
|
the definition of "Finance Documents" shall be amended by adding the 2020 Amendment Agreement,
the 2020 Deferral Fee Letters and the Mortgage Addendum as Finance Documents;
|
|
|
(iii)
|
the definition of "LIBOR" shall be deleted and replaced as follows:
|
"LIBOR"
means, in relation to the Loan or any part of the Loan:
(A) the
applicable Screen Rate as of the Specified Time for Dollars and for a period equal in length to the Interest Period of the Loan
or that part of the Loan; or
(B) as otherwise
determined pursuant to Clause 6.7 (Unavailability of Screen Rate).
and if, in
either case, that rate is less than zero, LIBOR shall be deemed to be zero;"
|
|
(iv)
|
the definition of "Loan" shall be deleted and replaced as follows:
|
""Loan"
means the loan made or to be made under this Agreement (including under the 2020 Deferral Tranche) or the principal amount outstanding
for the time being of that loan ";
|
|
(v)
|
the definition of "Maximum Loan Amount" shall be deleted and replaced as follows:
|
"Maximum
Loan Amount" means the aggregate of (a) the Dollar Equivalent of Euro 284,004,000; (b) 100% of the First Instalment of
the SACE Premium to be paid by the Borrower direct to SACE on or before 30 days following the issuance of the SACE Insurance Policy;
and (c) 100% of the Second Instalment of the SACE Premium payable on the original Drawdown Date, with (X) the Loan currently outstanding
on the 2020 Deferral Effective Date being equal to $264,624,403.70 and (Y) an amount equal to $31,795,501.86
(under the 2020 Deferral Tranche) being available for utilisation,
(and which
for this purpose includes the aggregate amount of the 2020 Deferral Tranche (including the related premium payable to SACE to be
financed thereunder)) to be made (or deemed to be made) available as provided for in this Agreement";
|
|
(vi)
|
the definition of "Overnight LIBOR" shall be deleted and replaced as follows:
|
"Overnight
LIBOR" means, in relation to the Loan or any part of the
Loan:
|
|
(A)
|
on any date, the applicable day to day Screen Rate as of the Specified Time for Dollars; or
|
|
|
(B)
|
as otherwise determined pursuant to Clause 6.7 (Unavailability of Screen Rate),
|
and if, in
either case, that rate is less than zero, Overnight LIBOR shall be deemed to be zero; and
|
|
(vii)
|
the definition of "Quotation Date" shall be deleted and replaced as follows:
|
"Quotation
Day" means in relation to any period for which an interest rate is to be determined, two Business Days before the
first day of that period unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will be
determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be
given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
and all references
to "Quotation Date" shall be replaced with references to "Quotation Day".
|
|
(viii)
|
the definition of "Relevant Interbank Market" shall be deleted and replaced as follows:
|
"Relevant
Interbank Market" means the London Interbank Market.
|
|
(c)
|
Clause 3.1 (General) shall be amended by inserting a new final sentence as follows:
|
"This
Clause 3 (Conditions Precedent) shall not apply to the 2020 Deferral Tranche, save for Clause 3.14."
|
|
(d)
|
A new clause 3.14 shall be inserted as follows:
|
"The
relevant part of the 2020 Deferral Tranche shall only be advanced if the Agent shall have received (a) no later than five (5) Business
Days before the date of the relevant advance (and only if required under Clause 4.9 hereunder), a Drawdown Notice from the Borrower,
signed by a duly authorised signatory of the Borrower, specifying the amount of the 2020 Deferral Tranche to be drawn down, and
(b) on the relevant date of the relevant advance or deemed advance (as applicable):
|
|
(i)
|
save as disclosed in writing to the Agent and SACE prior to the
date of the 2020 Amendment Agreement, no Event of Default is continuing or would result from such advance or deemed advance
(as applicable) and no 2020 Deferral Prepayment Event or event or circumstance specified in clause
18 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing) be an Event of Default has occurred; and
|
|
|
(ii)
|
save as disclosed in writing to the Agent and SACE prior to the
date of the 2020 Amendment Agreement, each of the repeating representations set out in Clause 11 (Representations and
warranties) are true as at such date by reference to the facts and circumstances existing at such date."
|
|
|
(e)
|
The drawdown mechanics of the Facility Agreement shall be amended to allow for drawdown of the
2020 Deferral Tranche as follows:
|
|
|
(i)
|
The following new clause 4.9 shall be added:
|
“4.9
2020 Deferral Tranche. Pursuant to the 2020 Amendment Agreement, the Lenders have agreed (but without increasing the Maximum
Loan Amount and the Total Commitments of each Lender save for the related premium to be advanced in accordance with paragraph (B)
below) to make available to the Borrower the 2020 Deferral Tranche as follows:
|
|
(A)
|
on each Repayment Date during the Deferral Period, a portion of the 2020 Deferral Tranche in an
amount equal to the relevant 2020 Deferred Repayment Instalment due on such Repayment Date shall be automatically drawn by the
Borrower and applied towards repayment of the relevant 2020 Deferred Repayment Instalment due on such date. Each such advance under
the 2020 Deferral Tranche shall be automatic and notional only, and effected by means of a book entry to finance the 2020 Deferred
Instalments then due; and
|
|
|
(B)
|
together with the first advance under this Clause 4.9 (2020 Deferral Tranche), a portion
of the 2020 Deferral Tranche in an amount equal to the amount to be paid to SACE in respect of the premium payable to SACE due
on the first advance under the 2020 Deferral Tranche shall be drawn by the Borrower and paid to SACE as specified in the relevant
Drawdown Notice.
|
Accordingly,
the other provisions of this Clause 4 shall not apply to the advance of the 2020 Deferral Tranche
and each advance of the 2020 Deferral Tranche under this Clause 4.9 (2020 Deferral Tranche) (A) shall be deemed to satisfy
the Borrower’s obligations under Clause 5 (Repayment) in respect of the corresponding 2020 Deferred Repayment Instalment.”,
and clause
2.3 (Purpose of Loan) and clause 4.4 (Availability and conditions) of the Facility Agreement shall be deemed amended
and supplemented accordingly by this Agreement.
|
|
(f)
|
The repayment provisions of the Facility Agreement shall be amended to provide for the repayment
of the 2020 Deferral Tranche as follows:
|
|
|
(i)
|
In Clause 5.1, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “The Borrower”;
|
|
|
(ii)
|
In Clause 5.2, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “The first instalment”;
|
|
|
(iii)
|
In Clause 5.3, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “Each of the”;
|
|
|
(iv)
|
In Clause 5.4, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “On the final Repayment Date”;
|
|
|
(v)
|
A new paragraph 5.5 to the Facility Agreement shall be added as follows:
|
“5.5
Repayment of 2020 Deferral Tranche. Subject to Clause 4.9 (2020 Deferral Tranche), the 2020 Deferral Tranche shall be
repaid in eight semi-annual instalments beginning on the 2020 Deferral Repayment Starting Point and until the 2020 Deferral Final
Repayment Date as set out below. Each such instalment shall be a “Deferral Repayment Instalment” and each date
on which a Deferral Repayment Instalment is payable shall be a “Deferral Repayment Date”.”
|
|
(g)
|
The voluntary prepayment provisions of the Facility Agreement shall be amended by adding to the
end of clause 16.2 (Voluntary prepayment) the following paragraph:
|
“Any
voluntary prepayment shall be made in accordance with the provisions of this Clause 16.2 and applied against the outstanding repayment
instalments in the inverse order of their maturity, save that where there is an amount of the 2020 Deferral Tranche outstanding,
any such prepayment shall first be applied against such 2020 Deferral Tranche in the inverse order of maturity.”
|
|
(h)
|
The interest provisions of the Facility Agreement shall be amended:
|
|
|
(i)
|
to confirm that interest will accrue on the relevant part of the 2020 Deferral Tranche at a floating
rate, clause 6 (Interest) shall be amended by adding a new clause 6.3 as follows:
|
““6.3
Interest in respect of 2020 Deferral Tranche. The rate of interest for each Interest Period in respect of the 2020 Deferral
Tranche shall be the Floating Interest Rate.”; and
|
|
(ii)
|
to reflect the increased costs of the Lenders in connection with the deferral arrangements contemplated
by this Agreement and the 2020 Amendment Agreement, clause 6 (Interest) shall be amended by adding a new clause 6.4 as follows:
|
“6.4
Deferred Costs. Independently to any other obligation to pay costs, expenses or interest under or in connection with this Agreement,
the Borrower shall, as a separate obligation, also pay to the Agent (for distribution to each Lender) deferred costs in respect
of any drawn portion of the 2020 Deferral Tranche at the Deferred Costs Percentage for each Interest Period during which any part
of the 2020 Deferral Tranche remains outstanding. Whilst not an interest liability, such deferred costs shall be charged from and
including the first day of the applicable Interest Period in which an amount of the 2020 Deferral Tranche is outstanding to (but
not including) the last day of such Interest Period, and will be payable semi-annually in arrears on each interest payment date.
Any deferred costs payable in accordance with this Clause 6.4 (Deferred Costs) shall be calculated on the basis of the actual
number of days elapsed over a year comprised of 360 days. Any non-payment of such deferred costs shall be an Event of Default in
accordance with Clause 18.2 (Non-payment).”
and, for the
avoidance of doubt, interest due during the Deferral Period and as contemplated in the Facility Agreement will continue to be paid
and the remaining clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(i)
|
Clauses 6.5 (Market disruption) to clause 6.10 (Alternative rate of interest in absence
of agreement) inclusive of the Facility Agreement shall be deleted and replaced by the following provisions:
|
“6.7
Unavailability of Screen Rate
|
|
(a)
|
Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period
of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to
the Interest Period of the Loan or that part of the Loan.
|
|
|
(j)
|
Reference Bank Rate: If no Screen Rate is available for LIBOR for:
|
|
|
(ii)
|
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the
Interpolated Screen Rate,
|
|
|
(iii)
|
the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time and for a period
equal in length to the Interest Period of the Loan or that part of the Loan.
|
|
|
(k)
|
Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for
Dollars or the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause
6.10 (Cost of funds) shall apply to the Loan or that part of the Loan for that Interest
Period.
|
6.8 Calculation
of Reference Bank Rate
|
|
(a)
|
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate
but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis
of the quotations of the remaining Reference Banks.
|
|
|
(b)
|
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation,
there shall be no Reference Bank Rate for the relevant Interest Period.
|
6.9 Market
Disruption
If before
close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notification from a Lender
or Lenders (whose participations in the Loan or the relevant part of the Loan in aggregate exceed 50 per cent. of the Loan or the
relevant part of the Loan as appropriate) that the cost to it or each of them of funding its participation in the Loan or that
part of the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 6.10 (Cost of funds)
shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
6.10 Cost
of funds
|
|
(a)
|
If this Clause 6.10 (Cost of funds) applies, the rate of interest on the Loan or the relevant
part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
|
|
(ii)
|
the weighted average of the rates notified to the Agent by each Lender as soon as practicable and
in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate
per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source
it may reasonably select.
|
|
|
(b)
|
If this Clause 6.10 (Cost of funds) applies and the Agent or the Borrower so requires, the
Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute
basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
|
|
(c)
|
Subject to Clause 6.11 (Replacement of Screen Rate), any
substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the
Borrower, be binding on all Parties.
|
|
|
(d)
|
If paragraph (e) below does not apply and any rate notified to the Agent under sub-paragraph (ii)
of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
|
|
(e)
|
If this Clause 6.10 (Cost of funds) applies pursuant to Clause 6.9 (Market disruption)
and:
|
|
|
(i)
|
a Lender's Funding Rate is less than LIBOR; or
|
|
|
(ii)
|
a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph
(a) above,
|
the cost to
that Lender of funding its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed,
for the purposes of paragraph (a) above, to be LIBOR.
|
|
(f)
|
If this Clause 6.10 (Cost of funds) applies but any Lender does not supply a quotation by
the time specified in sub-paragraph (ii) of paragraph (a) above, the rate of interest shall be calculated on the basis of the quotations
of the remaining Lenders.
|
6.11 Replacement
of Screen Rate
If a Screen
Rate Replacement Event has occurred in relation to the Screen Rate for Dollars, any amendment or waiver which relates to:
|
|
(i)
|
providing for the use of a Replacement Benchmark; and
|
|
|
(A)
|
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
|
|
(B)
|
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement
(including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes
of this Agreement);
|
|
|
(C)
|
implementing market conventions applicable to that Replacement Benchmark;
|
|
|
(D)
|
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark;
or
|
|
|
(E)
|
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer
of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment
or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body,
the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
may be made
with the consent of the Agent (acting on the instructions of the Majority Lenders), SACE and SIMEST (if applicable) and the Borrower.
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(l)
|
The interest period mechanics of the Facility Agreement shall be updated to reflect the existence
of the 2020 Deferral Tranche by adding a new clause 7.3 as follows:
|
“7.3
The first Interest Period in relation to each advance or deemed advance (as applicable) under the 2020 Deferral Tranche shall start
on the date of such advance or deemed advance (as applicable) and end on the last day of the current Interest Period in respect
of the Loan, following which all Interest Periods will be consolidated”.
|
|
(m)
|
The provisions of clause 9.1(b) shall be amended by adding a new
clause 9.1(b)bis as follows:
|
“9.1(b)bis
With effect from the date of the 2020 Amendment Agreement, the Borrower shall pay to the Agent (for the account of the
Lenders for application pro rata to their Commitments) a commitment fee in the amount of [*]
per cent. ([*] %) per annum on the daily undrawn 2020 Deferral Commitment. The commitment fee shall be payable in arrears on
the date of each advance or deemed advance, as applicable, of the 2020 Deferral Tranche in accordance with Clause 4.9 or, if
cancelled, on the date of cancellation of the 2020 Deferral Tranche.”
|
|
(n)
|
Clause 12.2 (Information) shall be amended by:
|
|
|
(i)
|
deleting sub-clause (b); and
|
|
|
(ii)
|
deleting sub-clause (c) and replacing it with the following wording:
|
“(c)
as soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter for the first three
quarters in any fiscal year and within 90 days for the final quarter) a copy of the unaudited consolidated quarterly management
accounts of the Guarantor (it being understood that the delivery by the Guarantor of quarterly or annual reports as filed with
the Securities and Exchange Commission in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements
of this paragraph (c))”.
|
|
(o)
|
Clause 18.4 (Breach of other obligations) shall be amended by adding a new sub-clause (c)
as follows:
|
“(c)
any breach of any financial covenant contained in Clause 11.15 of the Guarantee arising on a testing
date during the Deferral Period shall not, subject to no (i) Event of Default under Clauses 18.7 (Winding-up) to Clause
18.13 (Cessation of business) (inclusive) having occurred and being continuing or (ii) 2020 Deferral Prepayment Event having
occurred, constitute an Event of Default.”
|
|
(p)
|
A cross-default occurring solely due to a breach of financial covenants in respect of the Guarantee
and applying to the Group in another SACE-backed loan agreement to which the Principles apply shall not, subject to the terms of
the Amended Facility Agreement, result in an Event of Default and, accordingly, a new clause 18.6(e) shall be added as follows:
|
“(e)
No Event of Default will occur, or be deemed to have occurred, under this Clause 18.6 (Cross default) if such Event of Default
occurs during the Deferral Period (but without prejudice to the rights of the Lenders in respect of any further breach that may
occur following the expiry of the Deferral Period) and is caused solely as a result of a breach of financial covenants in respect
of the Group equivalent to those set out in clause 11.15 of the Guarantee, under, or in relation to, any other SACE-backed facility
agreement to which a Guarantor is a Party or has executed a Guarantee and to which the Principles apply, unless at the time of
such Event of Default, an event resulting in mandatory prepayment of the Loan pursuant to Clause 16.3 (Mandatory prepayment
– sale and total loss) and Clause 16.4 (Mandatory prepayment – SACE insurance policy) or a 2020 Deferral
Payment Event has occurred.”
|
|
(q)
|
Clause 19.1 (Receipts) shall be amended by deleting sub-clause (a) and replacing it with
the following wording:
|
“(a)
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 17 (Interest on Late Payments)
third, to interest payable pursuant to Clause 6 (Interest) and to any deferred costs payable pursuant to Clause 6.4 (Deferred
Costs), fourth, to the principal of the Loan payable pursuant to Clause 5 (Repayment), fifth, to any other sums due
under this Agreement or any other Finance Document and, if relevant, pro rata to each of the Lenders and sixth, to
any sums due pursuant to Clause 20.2 (Breakage costs and SIMEST arrangements); or”.
|
|
(r)
|
A new clause 36 (Bail-In) shall be added as follows:
|
36 Bail-In
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the parties
to a Finance Document, each Party acknowledges and accepts that any liability of any party to a Finance Document under or in connection
with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to
be bound by the effect of:
|
|
(i)
|
any Bail-In Action in relation to any such liability, including (without limitation):
|
|
|
(A)
|
a reduction, in full or in part, in the principal amount, or outstanding amount due (including
any accrued but unpaid interest) in respect of any such liability;
|
|
|
(B)
|
a conversion of all, or part of, any such liability into shares or other instruments of ownership
that may be issued to, or conferred on, it; and
|
|
|
(C)
|
a cancellation of any such liability; and
|
|
|
(ii)
|
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In
Action in relation to any such liability,
|
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(s)
|
A new clause 37 (Confidentiality of funding rates and reference bank quotations) shall be
added as follows:
|
37 Confidentiality
of funding rates and reference bank quotations.
37.1 Confidentiality
and disclosure
|
|
(a)
|
The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and
(d) below.
|
|
|
(b)
|
The Agent may disclose:
|
|
|
(i)
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower
pursuant to Clause 6.6 (Notification of Interest Periods and Floating Interest Rate);
|
|
|
(ii)
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration
services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide
those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially
in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other
form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
|
|
|
(c)
|
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose
any Funding Rate, to:
|
|
|
(i)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers,
auditors, partners and representatives, if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant
to this sub-paragraph (i) is informed in writing of its confidential nature and that it may be price sensitive information except
that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
|
|
(ii)
|
any person to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is
to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable
to do so in the circumstances;
|
|
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(iii)
|
any person to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding
Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive
information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as
the case may be, it is not practicable to do so in the circumstances; and
|
|
|
(iv)
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
|
|
(d)
|
The Agent’s obligations in this Clause 37 (Confidentiality of Funding Rates and Reference
Bank Quotations) relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under
Clause 6.6 (Notification of Interest Periods and Floating Interest Rate) provided that (other than pursuant to sub-paragraph
(i) of paragraph (b) above) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such
notification.
|
37.2 Related
obligations
|
|
(a)
|
The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not
to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
|
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(b)
|
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the
relevant Lender or Reference Bank, as the case may be:
|
|
|
(i)
|
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of (c) of Clause 37.1
(Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph
during the ordinary course of its supervisory or regulatory function; and
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|
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this Clause 37 (Confidentiality
of Funding Rates and Reference Bank Quotations).
|
37.3 No
Event of Default
No Event
of Default will occur under Clause 18.4 (Breach of other obligations) by reason only of an Obligor’s failure to comply
with this Clause 37 (Confidentiality of Funding Rates and Reference Bank Quotations).
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
5.2
|
Specific Amendments to Guarantee
|
With effect on and from the
Effective Date, Clause 11.3 (Provision of financial statements) of the Guarantee shall be, and shall be deemed by this Agreement
to be amended as follows:
|
|
(a)
|
deleting sub-clause (d) and replacing it with the following wording:
|
“(d) as
soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter in respect of the first
three quarters of each fiscal year and 90 days in respect of the final quarter) a copy of the unaudited consolidated quarterly
management accounts of the Guarantor certified as to their correctness by the chief financial officer of the Guarantor (it being
understood that the delivery by the Guarantor of quarterly or annual reports as filed with the Securities and Exchange Commission
in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements of this paragraph (d))”;
|
|
(b)
|
deleting sub-clause (g)(i); and
|
|
|
(c)
|
deleting sub-clause (g)(ii)(x),
|
and, for
the avoidance of doubt, subject to the provisions of Clause 5.5 (Borrower and Creditor Parties’ Confirmations and Waivers)
and Clause 6.5 (Breach of new covenants or the Principles), the financial covenants will continue to be tested and the reporting
obligations shall continue to apply in accordance with clause 11.3 (Provision of financial statements) of the Guarantee
(as amended and supplemented by this Agreement) in respect of the Deferral Period.
|
|
5.3
|
Guarantor confirmation
|
On the Effective Date the Guarantor
confirms that:
|
|
(a)
|
its Guarantee extends to the obligations of the Borrower under the Finance Documents as amended
and supplemented by this Agreement;
|
|
|
(b)
|
the obligations of the relevant Obligors under the Finance Documents as amended and supplemented
by this Agreement are included in the Secured Liabilities (as defined in the Facility Agreement); and
|
|
|
(c)
|
the Guarantee continues to have full force and effect in accordance with its terms as so extended.
|
|
|
5.4
|
Security confirmation
|
Without prejudice to the provisions
of the Mortgage Addendum, on the Effective Date, each Obligor confirms that:
|
|
(a)
|
any Security Interest created by it under the Finance Documents extends to the obligations of the
relevant Obligors under the Finance Documents as amended and supplemented by this Agreement;
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|
|
(b)
|
the obligations of the relevant Obligors under the Finance Documents as amended and supplemented
by this Agreement are included in the Secured Liabilities (as defined in the Finance Documents to which it is a party);
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(c)
|
the Security Interests created under the Finance Documents continue in full force and effect on
the terms of the respective Finance Documents; and
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|
(d)
|
to the extent that this confirmation creates a new Security Interest, such Security Interest shall
be on the terms of the Finance Documents in respect of which this confirmation is given.
|
|
|
5.5
|
Borrower and Creditor Parties’ Confirmations and Waivers
|
|
|
(a)
|
Notwithstanding the amendments to the testing of the financial covenants contemplated by Clause
5.2, the Borrower and the Guarantor confirm that the reporting obligations under clause 11.3 (Provision
of financial statements) of the Guarantee (as amended and supplemented by this Agreement) in respect of such financial covenants
shall continue to apply. The Agent confirms that any breach of such financial covenants arising on a testing date during the Deferral
Period by reference to the financial position of the Group (on a consolidated basis), shall not (without prejudice to the rights
of the Lenders in respect of any further breach of such financial covenants that may occur following the expiry of the Deferral
Period, and subject further to no (a) Event of Default under Clauses 18.7 (Winding-up) to Clause 18.13 (Cessation
of business) (inclusive) of the Amended Facility Agreement having occurred and being continuing or (b) 2020 Deferral Prepayment
Event having occurred) result in an Event of Default.
|
|
|
(b)
|
For the avoidance of doubt, in addition to the other undertakings the application of which have
not been expressly suspended under this Agreement, the Borrower confirms that the undertaking pursuant to clause 13.7(b) of the
Facility Agreement shall continue to apply in order to permit an inspection of the Ship during the Deferral Period as required
by the Principles.
|
|
|
5.6
|
Finance Documents to remain in full force and effect
|
The Finance Documents shall
remain in full force and effect and, from the Effective Date:
|
|
(a)
|
shall be, and shall be deemed by this Agreement to be amended (where relevant) to include a cross
reference to clause 36 (Bail-in) of the Facility Agreement as amended by this Agreement;
|
|
|
(b)
|
in the case of the Facility Agreement, as amended and supplemented pursuant to Clause 5.1 (Specific
amendments to the Facility Agreement);
|
|
|
(c)
|
in the case of the Guarantee, as amended and supplemented pursuant to Clause 5.2 (Specific Amendments
to Guarantee);
|
|
|
(d)
|
the Facility Agreement and the applicable provisions of this Agreement will be read and construed
as one document;
|
|
|
(e)
|
the Guarantee and the applicable provisions of this Agreement will be read and construed as one
document; and
|
|
|
(f)
|
except to the extent expressly waived by the amendments effected by this Agreement, no waiver is
given by this Agreement and the Lenders expressly reserve all their rights and remedies in respect of any breach of or other default
under the Finance Documents.
|
|
|
6.1
|
Payments under the Shipbuilding Contracts
|
Until the 2020 Deferral
Final Repayment Date:
|
|
(a)
|
the Guarantor shall and the Guarantor shall procure that any member of the Group that has entered
into a shipbuilding contract with a shipbuilder or enters into any such shipbuilding contract, in each case which is financed with
the support of SACE (the “Covered Shipbuilding Contracts”) shall continue to perform all of their respective
obligations as set out in any Covered Shipbuilding Contract (including without limitation the payment of any instalments due under
any Covered Shipbuilding Contract (as the same may have been amended prior to the 2020 Deferral Effective Date), and subject to
any amendment agreed pursuant to Clause 6.1(b) below). The Guarantor shall and the Guarantor shall procure that any member of the
Group shall promptly notify the Agent and SACE of any failure by it to comply with any due and owing obligations under a Covered
Shipbuilding Contract; and
|
|
|
(b)
|
the Guarantor shall and the Guarantor shall procure that any member of the Group further undertakes
to consult with the Agent and SACE in respect of any proposed amendment to a Covered Shipbuilding Contract
insofar as any such proposed amendment relates to a payment instalment or (save as expressly permitted by the relevant Amended
Facility Agreement) a delivery date or any other substantial amendment which may affect the related financing and to obtain the
Agent and SACE’s approval prior to executing any such amendment.
|
No Obligor
shall:
|
|
(a)
|
declare, make or pay any dividend or other distribution (or interest on any unpaid dividend or
other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);
|
|
|
(b)
|
repay or distribute any dividend or share premium reserve;
|
|
|
(c)
|
make any repayment of any kind under any shareholder loan; or
|
|
|
(d)
|
redeem, repurchase (whether by way of share buy-back program or otherwise), defease, retire or
repay any of its share capital or resolve to do so,
|
during the
period up to and including the 2020 Deferral Final Repayment Date, except that (i) any Obligor
may pay dividends and other distributions, directly or indirectly, to the Guarantor for the purpose
of providing liquidity to the Guarantor to enable the Guarantor to satisfy payment obligations for which the Guarantor is an obligor
and (ii) any Obligor may pay dividends in respect of the
tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for each relevant
jurisdiction of the Group or holder of the Guarantor’s capital stock with respect to income taxable as a result of any member
of the Group being taxed as a pass-through entity for U.S. Federal, state and local income tax purposes or attributable to any
member of the Group, provided that the actions in paragraph (ii) above shall only be permitted if there is no Event of Default
which is continuing under the Amended Facility Agreement and no Event of Default would arise from the payment of such dividend.
|
|
6.3
|
New capital raises or financing
|
|
|
(a)
|
Save as provided below:
|
|
|
(i)
|
no new debt or equity issuance shall be raised and no new Financial Indebtedness shall be incurred
by the Group (including, for the avoidance of doubt, inter-company loans);
|
|
|
(ii)
|
no non-arm’s length disposals of any asset relating to the Group fleet shall be made; and
|
|
|
(iii)
|
no additional Security Interests securing existing Financial Indebtedness will be created or permitted
to subsist,
|
during the
period up to and including the 2020 Deferral Final Repayment Date.
|
|
(b)
|
The restrictions in Clause 6.3(a) shall not apply in relation to:
|
|
|
(i)
|
any refinancing of any bond issuance of, or loan entered into by, the Group and maturing during
such period, and which, in each case, has been (or will be) listed in the Information Package submitted to the Agent prior to the
2020 Deferral Effective Date;
|
|
|
(ii)
|
any debt or equity issuance being raised prior to 31 December 2021 to provide the Group with crisis
and/or recovery related funding in respect of the impact of the Covid-19 pandemic;
|
|
|
(iii)
|
any debt or equity issuance being raised on or after 31 December 2021 to support the Group with
the impact of the Covid-19 pandemic, made with the prior written consent of SACE;
|
|
|
(iv)
|
any debt or equity issuance being raised to finance any instalment of a cruise vessel already contracted
for or contracted for during such period or any refurbishment, maintenance, upgrade or lengthening of a cruise ship during such
period;
|
|
|
(v)
|
any debt or equity issuance being raised to finance capital expenditure for projects which are
already contracted for but in respect of which committed financing has not yet been obtained, and which, in each case has been
(or will be) listed in the Information Package submitted to the Agent prior to the 2020 Deferral Effective Date;
|
|
|
(vi)
|
any extension of revolving credit facilities;
|
|
|
(vii)
|
any new debt or equity issuance otherwise agreed by SACE; or
|
|
|
(viii)
|
any inter-company loan which:
|
|
|
(A)
|
is existing as of the date of the 2020 Amendment Agreement;
|
|
|
(B)
|
is made among any Group members provided that:
|
|
|
(1)
|
any inter-company loan is made solely for the purpose of regulatory or tax purposes carried out
in the ordinary course of business and on an arm’s length basis; and
|
|
|
(2)
|
the aggregate principal amount of any inter-company loans outstanding pursuant to this Clause 6.3(b)(viii)(B)
does not exceed fifty million Dollars ($50,000,000) at any time; or
|
|
|
(C)
|
has been approved with the prior written consent of SACE.
|
|
|
6.4
|
Additional financial reporting
|
In addition
to the information to be provided in accordance with clause 12.2 (Information) of the Amended
Facility Agreement and clause 11.3 (Provision of financial statements) (as amended and supplemented by this Agreement) of
the Guarantee, the Guarantor undertakes to provide to the Agent a written report (in form and substance satisfactory to SACE):
|
|
(a)
|
from the Effective Date until the end of the Deferral Period, on a monthly basis within ten (10)
days after the end of each month, covering the cashflow projections for each month for the period from the date of the relevant
report until 31 March 2022, with a first monthly period commencing on 1 April 2020; and
|
|
|
(b)
|
thereafter until the 2020 Deferral Final Repayment Date, on a quarterly basis within forty-five
(45) days after the end of each quarter, covering the cashflow projections for the following twenty-four (24) months, with the
first quarterly period commencing on 1 April 2021.
|
|
|
6.5
|
Breach of new covenants or the Principles
|
Failure to
comply with the provisions of Clauses 6.1 to 6.4 inclusive and deferred costs payable pursuant to Clause 5.1(h)(ii) in respect
of the 2020 Deferral Tranche, or to otherwise duly perform and observe the other requirements and obligations set out in the Principles
shall, in each case, not constitute an Event of Default under the Facility Agreement but shall (in the case of any failure that
is capable of remedy (in the opinion of the Agent, at its sole discretion), including any failure to comply with Clause 6.1 or
Clause 6.4, only if such failure is not remedied within the Relevant Period pursuant to clause 18.4 of the Amended Facility Agreement
from the date of such failure to comply):
|
|
(a)
|
reinstate from the date of such breach the requirement to comply with the financial covenants set
out in clause 11.15 (Financial covenants) of the Guarantee which was otherwise suspended by operation of this Agreement;
|
|
|
(b)
|
in respect of Clauses 6.2 (Dividend restriction) and 6.3 (New capital raises or financing):
|
|
|
(A)
|
the 2020 Deferral Commitments and the availability of the 2020 Deferral Tranche will be immediately
cancelled;
|
|
|
(B)
|
all or part of the 2020 Deferral Tranche, together with accrued interest, deferred costs pursuant
to clause 6.4 (Deferred Costs) of the Amended Facility Agreement and all other amounts accrued or outstanding under the
Amended Facility Agreement in connection with the 2020 Deferral Tranche will be immediately due and payable, (including, for the
avoidance of doubt, any breakage costs pursuant to clause 20.2 (Breakage costs and SIMEST arrangements) of the Facility
Agreement); and
|
|
|
(c)
|
in respect of Clauses 6.1 (Payments under the Shipbuilding Contracts) and 6.4 (Additional
financial reporting), entitle the Agent, (acting on the instructions of the Lenders), by notice to the Borrower to:
|
|
|
(A)
|
cancel the 2020 Deferral Commitments and the availability of the 2020 Deferral Tranche whereupon
it shall immediately be cancelled; and
|
|
|
(B)
|
declare that all or part of the 2020 Deferral Tranche, together with accrued interest, deferred
costs pursuant to clause 6.4 (Deferred Costs) of the Amended Facility Agreement and all other amounts accrued or outstanding
under the Amended Facility Agreement in connection with the 2020 Deferral Tranche be immediately due and payable, whereupon they
shall become immediately due and payable (including, for the avoidance of doubt, any breakage costs pursuant to clause 20.2 (Breakage
costs sand SIMEST arrangements) of the Facility Agreement).
|
Clause 12.19 (further assurance)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
|
|
(a)
|
Clause 10.11 (transaction costs) of the Facility Agreement, as amended and supplemented
by this Agreement, applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
|
|
|
(b)
|
The Borrower shall pay to each of (i) the Agent (for the account of each Lender) and (ii) SACE
a handling fee in the amount and at times agreed in the 2020 Deferral Fee Letters.
|
Clause 31 (notices)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
This Agreement 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
Agreement.
|
|
11
|
Signing Electronically
|
The Parties
acknowledge and agree that they may execute this Agreement and any variation or amendment to the same, by electronic instrument.
The Parties agree that the electronic signatures appearing on the documents shall have the same effect as handwritten signatures
and the use of an electronic signature on this Agreement shall have the same validity and legal effect as the use of a signature
affixed by hand and is made with the intention of authenticating this Agreement, and evidencing the Parties’ intention to
be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise
each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests
including contract management.
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
|
|
(a)
|
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 or any non-contractual
obligation arising out of or in connection with this Agreement) (a "Dispute").
|
|
|
(b)
|
The Obligors accept that the courts of England are the most appropriate and convenient courts to
settle Disputes and accordingly no Obligor will argue to the contrary.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other
than an Obligor incorporated in England and Wales):
|
|
|
(i)
|
irrevocably appoints Hannaford Turner LLP, currently of 9 Cloak Lane, London EC4R 2RU, UK as its
agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document;
and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate
the proceedings concerned.
|
|
|
(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent
for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within 10 days of such
event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for
this purpose.
|
This Agreement has been entered into
on the date stated at the beginning of this Agreement.
Execution
Pages – Explorer – Supplemental Agreement
|
BORROWER
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
EXPLORER NEW BUILD, LLC
|
)
|
|
|
|
|
|
|
GUARANTOR
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
NCL CORPORATION LTD.
|
)
|
|
|
CHARTERER
|
|
|
|
|
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|
|
SIGNED by
|
)
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
SEVEN SEAS CRUISES S. DE R.L.
|
)
|
|
|
SHAREHOLDER
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
SEVEN SEAS CRUISES S. DE R.L.
|
)
|
|
|
LENDERS
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE
|
)
|
|
|
AND INVESTMENT BANK
|
)
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
SOCIÉTÉ GÉNÉRALE
|
)
|
|
|
SIGNED by
|
)
|
/s/ Luca Geronimi
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
BANCO BPM S.P.A.
|
)
|
|
|
SIGNED by
|
)
|
/s/ Natasha Seel
|
|
duly authorised
|
)
|
Attorney-in-fact
|
|
for and on behalf of
|
)
|
|
|
KFW IPEX-BANK GMBH
|
)
|
|
|
SIGNED by
|
)
|
/s/ Rene Bachmann
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
/s/ Bernadette Brinsa
|
|
AKA AUSFUHRKREDIT-GESELLSCHAFT
|
)
|
|
|
MIT BESCHRAENKTER HAFTUNG
|
)
|
|
|
MANDATED LEAD ARRANGERS
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE
|
)
|
|
|
AND INVESTMENT BANK
|
)
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
SOCIÉTÉ GÉNÉRALE
|
)
|
|
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|
SIGNED by
|
)
|
/s/
Claudia D’Amico
|
|
duly authorised
|
)
|
Director, Export
and Asset Finance, HSBC Bank plc
|
|
for and on behalf of
|
)
|
|
|
HSBC BANK PLC
|
)
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/
Natasha Seel
|
|
duly authorised
|
)
|
Attorney-in-fact
|
|
for and on behalf of
|
)
|
|
|
KFW IPEX-BANK GMBH
|
)
|
|
|
|
|
|
|
AGENT
|
|
|
|
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|
SIGNED
by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf
of
|
)
|
|
|
CRÉDIT
AGRICOLE CORPORATE AND
|
)
|
|
|
INVESTMENT
BANK
|
)
|
|
|
|
|
|
|
SACE AGENT
|
|
|
|
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|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
)
|
|
|
INVESTMENT BANK
|
)
|
|
|
|
|
|
|
SECURITY TRUSTEE
|
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SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
)
|
|
|
INVESTMENT BANK
|
)
|
|
Exhibit 10.2
Execution Version
[*]: THE IDENTIFIED INFORMATION HAS
BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED
Dated 4 June 2020
AMENDMENT TO TERM LOAN FACILITY
EXPLORER
II NEW BUILD, LLC
as Borrower
and
NCL CORPORATION
LTD.
as Guarantor
and
SEVEN SEAS CRUISES S. DE R.L.
as Charterer
and Shareholder
and
The Banks
and Financial Institutions
LISTED IN SCHEDULE 1
as Lenders
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
SOCIÉTÉ GÉNÉRALE
HSBC BANK PLC
KFW IPEX-BANK GMBH
as Joint Mandated Lead Arrangers
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
as Agent
and SACE Agent
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
as Security Trustee
SUPPLEMENTAL
AGREEMENT
relating to a facility agreement originally
dated 30 March 2016 in respect of the part financing of the passenger cruise ship m.v. "SEVEN SEAS SPLENDOR"
Index
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Clause
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Page
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1
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Definitions and Interpretation
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2
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2
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Conditions Precedent and Conditions Subsequent
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4
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3
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Representations
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5
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4
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Acknowledgment and Acceptance of the Principles
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5
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5
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Amendments to Facility Agreement and other Finance Documents
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5
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6
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New Covenants
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22
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7
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Further Assurance
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26
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8
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Costs and Expenses
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26
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9
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Notices
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26
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10
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Counterparts
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26
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11
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Signing Electronically
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26
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12
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Governing Law
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26
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13
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Enforcement
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27
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Schedules
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Schedule 1 Lenders and Commitments
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28
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Schedule 2 Conditions Precedent
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30
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Schedule 3 Repayment Schedule
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32
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Schedule 4 Information Package
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34
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Schedule 5 Form of Effective Date Certificate
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35
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Execution
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Execution Pages – Splendor – Supplemental Agreement
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36
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THIS
AGREEMENT is made on 4 June 2020
Parties
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(1)
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EXPLORER II NEW BUILD, LLC, a limited liability company formed in the state of Delaware
whose registered office is at Corporate Creations Network, Inc. 3411 Silverside Road, Tatnall Building Suite 104, Wilimington,
DE 19810, United States of America as borrower (the "Borrower")
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(2)
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NCL CORPORATION LTD., an exempted company incorporated under the laws of Bermuda with its
registered office at Cumberland House, 9th Floor, 1 Victoria Street, Hamilton HM11, Bermuda (the "Guarantor")
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(3)
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SEVEN SEAS CRUISES S. DE R.L., a Panamanian limited company
(“sociedad de responsabilidad limitada”) organised and existing under the laws of the Republic of Panama, having
its office in the Republic of Panama with its Resident Agent being Arias, Fabrega & Fabrega with address at Plaza 2000 Building,
16th Floor, 50th Street, Panama, Republic of Panama and registered at the Mercantile Section of the Panama Public Registry at Microjacket
876, Document 1238212 since 7 November 2007 (the "Charterer" and "Shareholder")
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(4)
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THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Lenders and Commitments) as lenders
(the "Lenders")
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(5)
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CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France, SOCIÉTÉ GÉNÉRALE
a French société anonyme having its registered office located at 29 Boulevard Haussmann, 75009 Paris under number
Siren 552 120 222 at the Registre du Commerce et des Sociétés of Paris, France, HSBC BANK PLC of Level 2,
8 Canada Square, London, E14 5HQ, United Kingdom and KFW IPEX-BANK GMBH of Palmengartenstr, 5-9 60325, Frankfurt, as mandated
lead arrangers (the "Mandated Lead Arrangers")
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(6)
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CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as agent and SACE agent (the "Agent"
and the "SACE Agent")
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(7)
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CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as security trustee (the "Security
Trustee")
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Background
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(A)
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By the Facility Agreement, the Lenders agreed to make available to the Borrower a facility of the
Dollar Equivalent of up to EUR 360,222,680.41 (not to exceed USD 498,187,967.01) for the purpose of assisting the Borrower in financing
(i) payment or reimbursement under the Shipbuilding Contract of all or part of 80% of the Final Contract Price up to the Eligible
Amount and (ii) payment to SACE of 100% of the SACE Premium.
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(B)
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Due to the unprecedented and extraordinary impacts of the Covid-19 pandemic on the cruise sector
and cruise operators, SACE S.p.A. has informed the cruise operators of its availability to evaluate certain measures (the "Temporary
Measures") applicable in relation to certain qualifying loan agreements in order to assist companies which
are financially sound but dealing with the impact of the temporary but unprecedented Covid-19 pandemic; the possibility to access
to such measures is subject, amongst other things, to certain principles dated 15 April 2020 for
cruise lines offered by SACE (as further defined below, the "Principles").
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(C)
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Pursuant to the consent request letter dated 18 April 2020, the
Borrower and the Guarantor notified the Agent and the SACE Agent of the wish to benefit from the Temporary Measures in relation
to certain loan agreements listed therein, including the Facility Agreement, and requested, amongst other things, the deferral
of repayments of principal under the Facility Agreement for a period of one year from 1 April 2020 to 31 March 2021 (the "Borrower
Request").
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(D)
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On 25 May 2020, the Agent (for and on behalf of the Lenders)
and SACE provided their consent to part of the Borrower Request in accordance with and subject to certain conditions as set out
in this supplemental agreement (the "Agreement").
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(E)
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The Parties have agreed to enter into this Agreement for the purposes of, inter alia, documenting
the required amendments identified in the Principles.
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Operative
Provisions
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1
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Definitions and Interpretation
|
In this Agreement:
"2020
Deferral Fee Letters" means any letter between the Agent
and any Obligor which sets out the fees payable in connection with the arrangements contemplated by this Agreement.
"2020
Deferral Prepayment Event" means the occurrence of any event entitling the Agent to exercise any rights granted to it
pursuant to Clause 6.5 (Breach of new covenants or the Principles) of this Agreement, including, without limitation, the
ability to cancel any part, or demand the immediate repayment of, the 2020 Deferral Tranche and to terminate the waiver of the
financial covenants granted pursuant to clause 11.15 of the Guarantee as amended by this Agreement.
"2020
Deferral Final Repayment Date" means the Repayment Date falling 3 years and six months after the 2020 Deferral Repayment
Starting Point, or, if earlier, the date on which the 2020 Deferral Tranche has been repaid or prepaid in full.
"2020
Deferral Repayment Starting Point" means
the date of the first Repayment Date falling after 31 March 2021, namely 30 July 2021.
"2020
Deferral Tranche" means the part of the Loan made or to be made available (or deemed made or to be deemed to be made available)
to the Borrower to finance the aggregate of the 2020 Deferred Repayment Instalments and the related premium payable to SACE (amounting
to [*] per cent. ([*]%) of the Total Commitments as of 1 April 2020) in a principal amount not
exceeding thirty-five million, nine hundred and twenty-five thousand, three hundred and sixty nine Dollars and ninety-nine Cents
($35,925,369.99).
"2020
Deferred Repayment Instalments" means the repayment instalments in principal due during the Deferral Period as set out
pursuant to Schedule 3 (Repayment schedule).
"2020 Finance Documents"
means this Agreement, the Mortgage Addendum and each 2020 Deferral Fee Letter.
"Amended
Facility Agreement" means the Facility Agreement as amended and supplemented by this Agreement.
"Deferral
Period" means the period from 1 April 2020 to 31 March 2021.
"Effective
Date" means the date on which the Agent notifies the Borrower, the other Creditor Parties and SACE as to the satisfaction
of the conditions precedent as provided in Clause 2.1(a).
"Facility
Agreement" means the facility agreement dated 30 March 2016 and made between, amongst others, (i) the Borrower,
(ii) the Lenders, (iii) the Mandated Lead Arrangers, (iv) the Agent and the SACE Agent and (v) the Security Trustee.
"Information
Package" means the information package in connection with the "Debt Holiday" application in the form
set out in Schedule 4 (Information Package) to this Agreement, submitted, or to be submitted (as the case may be), by the
Borrower (or the Guarantor on its behalf) in order to obtain the benefit of the measures provided for in the Principles for the
purpose of the Facility Agreement (as amended) and certain of the Borrower’s and the Guarantor’s obligations under
the Facility Agreement.
"Mortgage
Addendum" means the addendum to the Mortgage in the agreed form.
"Obligors"
means the Borrower, the Guarantor, the Charterer and the Shareholder.
"Party"
means a party to this Agreement.
"Principles"
means the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April
2020, which sets out certain key principles and parameters relating to the qualifying Loan Agreements (as defined therein) and
being applicable to SACE-covered loan agreements such as the Facility Agreement.
"SACE"
means SACE S.p.A., an Italian joint stock company (società per azioni) with a sole shareholder, whose registered
office is located at Piazza Poli 37/42, 00187 Rome, Italy and registered with the Companies Registry of Rome under number 05804521002.
Defined expressions in the
Facility Agreement and, with effect from the Effective Date, the Amended Facility Agreement, shall have the same meanings when
used in this Agreement unless the context otherwise requires or unless otherwise defined in this Agreement.
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1.3
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Application of construction and interpretation provisions of Facility Agreement
|
Clause 1.2 (construction
of certain terms) of the Facility Agreement applies to this Agreement as if it were expressly incorporated in it with any necessary
modifications.
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1.4
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Agreed forms of new, and supplements to, Finance Documents
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References
in Clause 1.1 (Definitions) to any new or supplement to a Finance Document being in "agreed form" are to
that Finance Document:
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(a)
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in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower
and the Agent); or
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(b)
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in any other form agreed in writing between the Borrower, the Agent and the Lenders acting with
the authorisation of the Majority Lenders.
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1.5
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Designation as a Finance Document
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The Borrower and the Agent
designate this Agreement as a Finance Document.
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(a)
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Unless provided to the contrary in a Finance Document, a person who is not a Party has no right
under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the
benefit of any term of this Agreement other than SACE, who may enforce or to enjoy the benefit of and rely on the provisions of
this Agreement and the Amended Facility Agreement subject to the provisions of the Third Parties Act.
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(b)
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Notwithstanding any term of any Finance Document, the consent of any person who is not a Party
(other than SACE) is not required to rescind or vary this Agreement at any time.
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(c)
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For the avoidance of doubt and in accordance with clause 35.4 (Third party rights) of the
Facility Agreement, nothing in this Clause 1.6 (Third party rights) shall limit or prejudice the exercise by SACE of its
rights under this Agreement or the Finance Documents in the event that such rights are subrogated or assigned to it pursuant to
the terms of the SACE Insurance Policy.
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2
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Conditions Precedent and Conditions Subsequent
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2.1
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The Effective Date cannot occur unless:
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(a)
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the Agent has received (or on the instructions of all the Lenders, waived receipt of) all of the
documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent;
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(b)
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save as disclosed in writing to the Agent and SACE prior to the
date of this Agreement, the representations and warranties contained in Clause 3
(Representations) are true and correct on, and as of, each such time as if each was made with respect to the facts and circumstances
existing at such time;
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(c)
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save as disclosed in writing to the Agent and SACE prior to the
date of this Agreement, no Event of Default, event or circumstance specified in clause 18 (Events
of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the
Finance Documents or any combination of any of the foregoing) be an Event of Default, event resulting in mandatory prepayment of
the Loan pursuant to clause 16.3 (Mandatory prepayment – sale and total loss) and clause 16.4 (Mandatory prepayment
– SACE insurance policy) of the Facility Agreement or 2020 Deferral Prepayment Event shall have occurred and be continuing
or would result from the amendment of the Facility Agreement pursuant to this Agreement; and
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(d)
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the Agent is satisfied that the Effective Date can occur and have not provided any instructions
to the contrary informing the Parties that the Effective Date cannot occur.
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2.2
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Upon fulfilment or waiver of the conditions set out in Clause 2.1 above, the Agent shall provide
the Borrower and the Lenders with a copy of the executed certificate in the form set out in Schedule 5 (Form of Effective Date
Certificate) confirming that the Effective Date has occurred and such certificate shall be binding on all Parties.
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2.3
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Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary
before the Agent provides the certificate described in Clause 2.2 above, the Creditor Parties authorise (but do not require) the
Agent to execute and provide such certificate. The Agent shall not be liable for any damages, costs or losses whatsoever as a result
of giving any such certificate.
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3.1
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Facility Agreement representations
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On the date of this Agreement
and on the Effective Date, each Obligor that is a party to the Facility Agreement makes each of the representations and warranties
as set out in clause 11 (representations and warranties) of the Facility Agreement, as amended and supplemented by this
Agreement and updated with appropriate modifications to refer to the 2020 Finance Documents.
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3.2
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Finance Document representations
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Each Obligor makes the representations
and warranties set out in the Finance Documents (other than the Facility Agreement) to which it is a party, as amended and supplemented
by this Agreement and updated with appropriate modifications to refer to this Agreement and, where appropriate, the Mortgage Addendum,
by reference to the circumstances then existing on the date of this Agreement.
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4
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Acknowledgment and Acceptance of the Principles
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Each
Obligor confirms its acknowledgment to the Principles and full acceptance of all terms, requirements and conditions thereunder.
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5
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Amendments to Facility Agreement and other Finance Documents
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5.1
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Specific amendments to the Facility Agreement
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With effect on and from the
Effective Date the Facility Agreement shall be, and shall be deemed by this Agreement to be, amended as follows, so that, inter
alia, the principal amount of the Loan will not be increased (save for the premium to be advanced in accordance with Clause
5.1(e) below) but the repayment terms of, and the interest rate applicable to the relevant part of the Loan will be changed to
reflect the repayment profile and interest terms for the 2020 Deferral Tranche on the basis set out in this Agreement:
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(a)
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In clause 1.1 (Definitions) of the Facility Agreement, the following definitions shall be
added in alphabetical order:
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(i)
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"2020
Amendment Agreement" means the amendment to this Agreement dated 4 June 2020
between, amongst others, the Borrower, the Agent and the SACE Agent.
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(ii)
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"2020 Deferral Commitment" means in relation to any Lender listed in Schedule
1 to the 2020 Amendment Agreement, the amount in Dollars expressed as a percentage set opposite its name under the heading "Commitment"
and the amount of any other commitment attributable to it (including the related premium payable to SACE) under this Agreement
in respect of the 2020 Deferral Tranche.
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(iii)
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"2020 Deferral Effective Date" has the meaning given to the term Effective Date
in the 2020 Amendment Agreement.
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(iv)
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"2020 Deferral Fee Letters"
means any letter between the Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated
by the 2020 Amendment Agreement.
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(v)
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"2020 Deferral Final Repayment Date" means the Repayment Date falling 3 years and six
months after the 2020 Deferral Repayment Starting Point, or, if earlier, the date on which the 2020 Deferral Tranche has been repaid
or prepaid in full.
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(vi)
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"2020 Deferral Prepayment Event" means the occurrence of any event entitling the
Agent to exercise any rights granted to it pursuant to Clause 6.5 (Breach of new covenants or the Principles) of the 2020
Amendment Agreement, including, without limitation, the ability to cancel any part, or demand the immediate repayment of, the 2020
Deferral Tranche and to terminate the waiver of the financial covenants granted pursuant to clause 11.15 of the Guarantee as amended
by the 2020 Amendment Agreement.
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(vii)
|
"2020 Deferral Repayment
Starting Point" means the date of the first Repayment Date falling after 31 March 2021, namely 30
July 2021.
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(viii)
|
"2020 Deferral Tranche" means the part of the Loan made or to be made available
to the Borrower to finance the aggregate of the 2020 Deferred Repayment Instalments and the related premium payable to SACE (amounting
to [*] per cent. ([*]%) of the Total Commitments as of 1 April 2020) in a principal amount not
exceeding thirty-five million, nine hundred and twenty-five thousand, three hundred hundred and sixty nine Dollars and ninety-nine
Cents ($35,925,369.99).
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(ix)
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"2020 Deferred Repayment Instalments" means the repayment instalments due during
the Deferral Period as set out pursuant to Schedule 3 (Repayment schedule).
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(x)
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"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework
for the recovery and resolution of credit institutions and investment firms.
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(xi)
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"Bail-In Action"
means the exercise of any Write-down and Conversion Powers.
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(xii)
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"Bail-In Legislation"
means:
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(i)
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in relation to an EEA Member Country which has implemented, or which at any time implements, Article
55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
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(ii)
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in relation to any state other than such an EEA Member Country or (to the extent that the United
Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires
contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
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(xiii)
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"Deferred Costs Percentage" means 0% p.a.
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(xiv)
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"Deferral Period" means the period from 1 April 2020 to 31 March 2021.
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(xv)
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"Deferral Repayment Date" has the meaning given to such term in Clause 5.5 (Repayment
of 2020 Deferral Tranche).
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(xvi)
|
"Deferral Repayment Instalments" has the meaning given to such term in Clause
5.5 (Repayment of 2020 Deferral Tranche).
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(xvii)
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"EEA Member Country"
means any member state of the European Union, Iceland, Liechtenstein and Norway.
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(xviii)
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"EU Bail-In Legislation Schedule"
means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
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(xix)
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"Funding Rate"
means any individual rate notified by a Lender to the Agent pursuant to sub-paragraph (i) of paragraph (e) of Clause 6.10 (Cost
of funds).
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(xx)
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"Interpolated Screen Rate"
means, in relation to the Loan or any part of the Loan, the rate which results from interpolating on a linear basis between:
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(i)
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the applicable Screen Rate for the longest period (for which that Screen Rate is available) which
is less than the Interest Period of the Loan or that part of the Loan; and
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(ii)
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the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which
exceeds the Interest Period of the Loan or that part of the Loan,
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each as
of the Specified Time for Dollars.
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(xxi)
|
"Principles" means
the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April 2020, which sets out certain key
principles and parameters relating to the qualifying Loan Agreements (as defined therein) and being applicable to SACE-covered
loan agreements such as this Agreement.
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(xxii)
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"Reference Bank Rate"
means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the
Reference Banks:
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(A)
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the Reference Bank is a contributor to the Screen Rate; and
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(B)
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it consists of a single figure,
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as the rate
(applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to
submit to the relevant administrator; or
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(ii)
|
in any other case, as the rate at which the relevant Reference Bank could fund itself in Dollars
for the relevant period with reference to the unsecured wholesale funding market.
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(xxiii)
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"Reference Bank Quotation"
means any quotation supplied to the Agent by a Reference Bank.
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(xxiv)
|
"Reference Banks"
means such entities as may be appointed by the Agent in consultation with the Borrower.
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(xxv)
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"Relevant Nominating Body" means any applicable central bank, regulator or other
supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request
of, any of them or the Financial Stability Board.
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(xxvi)
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"Replacement Benchmark" means a benchmark rate which is:
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(i)
|
formally designated, nominated or recommended as the replacement for a Screen Rate by:
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(A)
|
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark
rate measures is the same as that measured by that Screen Rate); or
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(B)
|
any Relevant Nominating Body,
|
and if replacements
have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Benchmark"
will be the replacement under paragraph (B) above;
|
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(ii)
|
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international
or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
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(iii)
|
in the opinion of the Majority Lenders and the Borrower, an appropriate successor to a Screen Rate.
|
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|
(xxvii)
|
"Resolution Authority"
means any body which has authority to exercise any Write-down and Conversion Powers.
|
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(xxviii)
|
"Screen Rate"
means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over
the administration of that rate) for Dollars for the relevant period displayed (before any correction, recalculation or republication
by the administrator) on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that
rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson
Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant
rate after consultation with the Borrower.
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(xxix)
|
"Screen Rate Contingency Period"
means fifteen (15) Business Days.
|
|
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(xxx)
|
"Screen Rate Replacement Event"
means, in relation to a Screen Rate:
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|
|
(i)
|
the methodology, formula or other means of determining that Screen Rate has, in the opinion of
the Majority Lenders and the Borrower materially changed;
|
|
|
(1)
|
the administrator of that Screen Rate or its supervisor publicly announces that such administrator
is insolvent; or
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(2)
|
information is published in any order, decree, notice, petition or filing, however described, or
filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of that Screen Rate is insolvent,
|
provided
that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
|
(B)
|
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide
that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that
Screen Rate;
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|
(C)
|
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate
has been or will be permanently or indefinitely discontinued; or
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|
|
(D)
|
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no
longer be used; or
|
|
|
(iii)
|
the administrator of that Screen Rate determines that that Screen Rate should be calculated in
accordance with its reduced submissions or other contingency or fallback policies or arrangements and either:
|
|
|
(A)
|
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority
Lenders and the Borrower) temporary; or
|
|
|
(B)
|
that Screen Rate is calculated in accordance with any such policy or arrangement for a period no
less than the Screen Rate Contingency Period; or
|
|
|
(iv)
|
in the opinion of the Majority Lenders and the Borrower, that Screen Rate is otherwise no longer
appropriate for the purposes of calculating interest under this Agreement.
|
|
|
(xxxi)
|
"Specified Time"
means a day or time determined in accordance with the following:
|
|
|
(i)
|
if LIBOR is fixed, the Quotation Day as of 11:00 am London time; and
|
|
|
(ii)
|
in relation to a Reference Bank Rate calculated by reference to the available quotations in accordance
with Clause 6.8 (Calculation of Reference Bank Rate), noon on the Quotation Day.
|
|
|
(xxxii)
|
"UK Bail-In Legislation" means (to the extent that the United Kingdom is not an
EEA Member Country which has implemented, or implements, Article 55 BRRD) Part 1 of the United Kingdom Banking Act 2009 and any
other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms
or other financial institutes or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
|
|
|
(xxxiii)
|
"Write-down and Conversion Powers"
means:
|
|
|
(i)
|
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time
to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
|
|
|
(ii)
|
in relation to any other applicable Bail-In Legislation:
|
|
|
(A)
|
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those
powers; and
|
|
|
(B)
|
any similar or analogous powers under that Bail-In Legislation; and
|
|
|
(iii)
|
in relation to any UK Bail-In Legislation:
|
|
|
(A)
|
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of
those powers; and
|
|
|
(B)
|
any similar or analogous powers under that UK Bail-In Legislation.
|
|
|
(b)
|
In clause 1.1 (Definitions) of the Facility Agreement, the following definitions shall be
amended as follows:
|
|
|
(i)
|
the definition of "Commitment" shall be amended by adding the following wording after
the wording "set opposite its name in Schedule 1":
|
"(including,
in relation to a Lender, its 2020 Deferral Commitment)";
|
|
(ii)
|
the definition of "Finance Documents" shall be amended by adding the 2020 Amendment Agreement,
the 2020 Deferral Fee Letters and the Mortgage Addendum as Finance Documents;
|
|
|
(iii)
|
the definition of "LIBOR" shall be deleted and replaced as follows:
|
"LIBOR"
means, in relation to the Loan or any part of the Loan:
(A) the
applicable Screen Rate as of the Specified Time for Dollars and for a period equal in length to the Interest Period of the Loan
or that part of the Loan; or
(B) as otherwise
determined pursuant to Clause 6.7 (Unavailability of Screen Rate).
and if, in
either case, that rate is less than zero, LIBOR shall be deemed to be zero;"
|
|
(iv)
|
the definition of "Loan" shall be deleted and replaced as follows:
|
""Loan"
means the loan made or to be made under this Agreement (including under the 2020 Deferral Tranche) or the principal amount outstanding
for the time being of that loan ";
|
|
(v)
|
the definition of "Maximum Loan Amount" shall be deleted and replaced as follows:
|
"Maximum
Loan Amount" means the aggregate of (a) the Dollar Equivalent of Euro 349,416,000; (b) 100% of the First Instalment of
the SACE Premium to be paid by the Borrower direct to SACE on the earlier of (i) 30 days following the issuance of the SACE Insurance
Policy and (ii) the date falling 6 months after the date of SACE’s board approval; and (c) 100% of the Second Instalment
of the SACE Premium payable on the original Drawdown Date, with (X) the Loan currently outstanding on the 2020 Deferral Effective
Date being equal to $425,987,473.16 and (Y) an amount equal to $35,925,369.99 (under the 2020 Deferral
Tranche) being available for utilisation,
(and which
for this purpose includes the aggregate amount of the 2020 Deferral Tranche (including the related premium payable to SACE to be
financed thereunder)) to be made (or deemed to be made) available as provided for in this Agreement";
|
|
(vi)
|
the definition of "Overnight LIBOR" shall be deleted and replaced as follows:
|
"Overnight
LIBOR" means, in relation to the Loan or any part of the Loan:
|
|
(A)
|
on any date, the applicable day to day Screen Rate as of the Specified Time for Dollars; or
|
|
|
(B)
|
as otherwise determined pursuant to Clause 6.7 (Unavailability of Screen Rate),
|
and if, in
either case, that rate is less than zero, Overnight LIBOR shall be deemed to be zero; and
|
|
(vii)
|
the definition of "Quotation Date" shall be deleted and replaced as follows:
|
"Quotation
Day" means in relation to any period for which an interest rate is to be determined, two Business Days before the first
day of that period unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will be determined
by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
and all references
to "Quotation Date" shall be replaced with references to "Quotation Day".
|
|
(viii)
|
the definition of "Relevant Interbank Market" shall be deleted and replaced as follows:
|
"Relevant
Interbank Market" means the London Interbank Market.
|
|
(c)
|
Clause 3.1 (General) shall be amended by inserting a new final sentence as follows:
|
"This
Clause 3 (Conditions Precedent) shall not apply to the 2020 Deferral Tranche, save for Clause 3.15."
|
|
(d)
|
A new clause 3.15 shall be inserted as follows:
|
"The
relevant part of the 2020 Deferral Tranche shall only be advanced if the Agent shall have received (a) no later than five (5) Business
Days before the date of the relevant advance (and only if required under Clause 4.9 hereunder), a Drawdown Notice from the Borrower,
signed by a duly authorised signatory of the Borrower, specifying the amount of the 2020 Deferral Tranche to be drawn down, and
(b) on the relevant date of the relevant advance or deemed advance (as applicable):
|
|
(i)
|
save as disclosed in writing to the Agent and SACE prior to the
date of the 2020 Amendment Agreement, no Event of Default is continuing or would result from
such advance or deemed advance (as applicable) and no 2020 Deferral Prepayment Event or event or circumstance specified in clause
18 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing) be an Event of Default has occurred; and
|
|
|
(ii)
|
save as disclosed in writing to the Agent and SACE prior to the
date of the 2020 Amendment Agreement, each of the repeating representations set out in Clause
11 (Representations and warranties) are true as at such date by reference to the facts and circumstances existing at such
date."
|
|
|
(e)
|
The drawdown mechanics of the Facility Agreement shall be amended to allow for drawdown of the
2020 Deferral Tranche as follows:
|
|
|
(i)
|
The following new clause 4.9 shall be added:
|
“4.9
2020 Deferral Tranche. Pursuant to the 2020 Amendment Agreement, the Lenders have agreed (but without increasing the Maximum
Loan Amount and the Total Commitments of each Lender save for the related premium to be advanced in accordance with paragraph (B)
below) to make available to the Borrower the 2020 Deferral Tranche as follows:
|
|
(A)
|
on each Repayment Date during the Deferral Period, a portion of the 2020 Deferral Tranche in an
amount equal to the relevant 2020 Deferred Repayment Instalment due on such Repayment Date shall be automatically drawn by the
Borrower and applied towards repayment of the relevant 2020 Deferred Repayment Instalment due on such date. Each such advance under
the 2020 Deferral Tranche shall be automatic and notional only, and effected by means of a book entry to finance the 2020 Deferred
Instalments then due; and
|
|
|
(B)
|
together with the first advance under this Clause 4.9 (2020 Deferral Tranche), a portion
of the 2020 Deferral Tranche in an amount equal to the amount to be paid to SACE in respect of the premium payable to SACE due
on the first advance under the 2020 Deferral Tranche shall be drawn by the Borrower and paid to SACE as specified in the relevant
Drawdown Notice.
|
Accordingly,
the other provisions of this Clause 4 shall not apply to the advance of the 2020 Deferral Tranche
and each advance of the 2020 Deferral Tranche under this Clause 4.9 (2020 Deferral Tranche) (A) shall be deemed to satisfy
the Borrower’s obligations under Clause 5 (Repayment) in respect of the corresponding 2020 Deferred Repayment Instalment.”,
and clause
2.3 (Purpose of Loan) and clause 4.4 (Availability and conditions) of the Facility Agreement shall be deemed amended
and supplemented accordingly by this Agreement.
|
|
(f)
|
The repayment provisions of the Facility Agreement shall be amended to provide for the repayment
of the 2020 Deferral Tranche as follows:
|
|
|
(i)
|
In Clause 5.1, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “The Borrower shall repay the Loan by:”;
|
|
|
(ii)
|
In Clause 5.2, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “The first instalment”;
|
|
|
(iii)
|
In Clause 5.3, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “Each repayment instalment”;
|
|
|
(iv)
|
In Clause 5.4, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “On the final Repayment Date”;
|
|
|
(v)
|
A new paragraph 5.5 to the Facility Agreement shall be added as follows:
|
“5.5
Repayment of 2020 Deferral Tranche. Subject to Clause 4.9 (2020 Deferral Tranche), the 2020 Deferral Tranche shall be
repaid in eight semi-annual instalments beginning on the 2020 Deferral Repayment Starting Point and until the 2020 Deferral Final
Repayment Date as set out below. Each such instalment shall be a “Deferral Repayment Instalment” and each date
on which a Deferral Repayment Instalment is payable shall be a “Deferral Repayment Date”.”
|
|
(g)
|
The voluntary prepayment provisions of the Facility Agreement shall be amended by adding to the
end of clause 16.2 (Voluntary prepayment) the following paragraph:
|
“Any
voluntary prepayment shall be made in accordance with the provisions of this Clause 16.2 and applied against the outstanding repayment
instalments in the inverse order of their maturity, save that where there is an amount of the 2020 Deferral Tranche outstanding,
any such prepayment shall first be applied against such 2020 Deferral Tranche in the inverse order of maturity.”
|
|
(h)
|
The interest provisions of the Facility Agreement shall be amended:
|
|
|
(i)
|
to confirm that interest will accrue on the relevant part of the 2020 Deferral Tranche at a floating
rate, clause 6 (Interest) shall be amended by adding a new clause 6.3 as follows:
|
““6.3
Interest in respect of 2020 Deferral Tranche. The rate of interest for each Interest Period in respect of the 2020 Deferral
Tranche shall be the Floating Interest Rate.”; and
|
|
(ii)
|
to reflect the increased costs of the Lenders in connection with the deferral arrangements contemplated
by this Agreement and the 2020 Amendment Agreement, clause 6 (Interest) shall be amended by adding a new clause 6.4 as follows
|
“6.4
Deferred Costs. Independently to any other obligation to pay costs, expenses or interest under or in connection with this Agreement,
the Borrower shall, as a separate obligation, also pay to the Agent (for distribution to each Lender) deferred costs in respect
of any drawn portion of the 2020 Deferral Tranche at the Deferred Costs Percentage for each Interest Period during which any part
of the 2020 Deferral Tranche remains outstanding. Whilst not an interest liability, such deferred costs shall be charged from and
including the first day of the applicable Interest Period in which an amount of the 2020 Deferral Tranche is outstanding to (but
not including) the last day of such Interest Period, and will be payable semi-annually in arrears on each interest payment date.
Any deferred costs payable in accordance with this Clause 6.4 (Deferred Costs) shall be calculated on the basis of the actual
number of days elapsed over a year comprised of 360 days. Any non-payment of such deferred costs shall be an Event of Default in
accordance with Clause 18.2 (Non-payment).”
and, for
the avoidance of doubt, interest due during the Deferral Period and as contemplated in the Facility Agreement will continue to
be paid and the remaining clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(i)
|
Clauses 6.5 (Market disruption) to clause 6.10 (Alternative rate of interest in absence
of agreement) inclusive of the Facility Agreement shall be deleted and replaced by the following provisions:
|
“6.7
Unavailability of Screen Rate
|
|
(a)
|
Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period
of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to
the Interest Period of the Loan or that part of the Loan.
|
|
|
(b)
|
Reference Bank Rate: If no Screen Rate is available for LIBOR for:
|
|
|
(ii)
|
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the
Interpolated Screen Rate,
|
|
|
(iii)
|
the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time and for a period
equal in length to the Interest Period of the Loan or that part of the Loan.
|
|
|
(c)
|
Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for
Dollars or the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause
6.10 (Cost of funds) shall apply to the Loan or that part of the Loan for that Interest
Period.
|
6.8 Calculation
of Reference Bank Rate
|
|
(a)
|
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate
but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis
of the quotations of the remaining Reference Banks.
|
|
|
(b)
|
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation,
there shall be no Reference Bank Rate for the relevant Interest Period.
|
6.9 Market
Disruption
If before
close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notification from a Lender
or Lenders (whose participations in the Loan or the relevant part of the Loan in aggregate exceed 50 per cent. of the Loan or the
relevant part of the Loan as appropriate) that the cost to it or each of them of funding its participation in the Loan or that
part of the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 6.10 (Cost of funds)
shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
6.10 Cost
of funds
|
|
(a)
|
If this Clause 6.10 (Cost of funds) applies, the rate of interest on the Loan or the relevant
part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
|
|
(ii)
|
the weighted average of the rates notified to the Agent by each Lender as soon as practicable and
in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate
per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source
it may reasonably select.
|
|
|
(b)
|
If this Clause 6.10 (Cost of funds) applies and the Agent or the Borrower so requires, the
Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute
basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
|
|
(c)
|
Subject to Clause 6.11 (Replacement of Screen Rate), any
substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the
Borrower, be binding on all Parties.
|
|
|
(d)
|
If paragraph (e) below does not apply and any rate notified to the Agent under sub-paragraph (ii)
of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
|
|
(e)
|
If this Clause 6.10 (Cost of funds) applies pursuant to Clause 6.9 (Market disruption)
and:
|
|
|
(i)
|
a Lender's Funding Rate is less than LIBOR; or
|
|
|
(ii)
|
a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph
(a) above,
|
the cost to
that Lender of funding its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed,
for the purposes of paragraph (a) above, to be LIBOR.
|
|
(f)
|
If this Clause 6.10 (Cost of funds) applies but any Lender does not supply a quotation by
the time specified in sub-paragraph (ii) of paragraph (a) above, the rate of interest shall be calculated on the basis of the quotations
of the remaining Lenders.
|
6.11 Replacement
of Screen Rate
If a Screen
Rate Replacement Event has occurred in relation to the Screen Rate for Dollars, any amendment or waiver which relates to:
|
|
(i)
|
providing for the use of a Replacement Benchmark; and
|
|
|
(A)
|
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
|
|
(B)
|
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement
(including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes
of this Agreement);
|
|
|
(C)
|
implementing market conventions applicable to that Replacement Benchmark;
|
|
|
(D)
|
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark;
or
|
|
|
(E)
|
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer
of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment
or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body,
the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
may be made
with the consent of the Agent (acting on the instructions of the Majority Lenders), SACE and SIMEST (if applicable) and the Borrower,
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(j)
|
The interest period mechanics of the Facility Agreement shall be updated to reflect the existence
of the 2020 Deferral Tranche by adding a new clause 7.3 as follows:
|
“7.3
The first Interest Period in relation to each advance or deemed advance (as applicable) under the 2020 Deferral Tranche shall start
on the date of such advance or deemed advance (as applicable) and end on the last day of the current Interest Period in respect
of the Loan, following which all Interest Periods will be consolidated”.
|
|
(k)
|
The provisions of clause 9.1(b) shall be amended by adding a new
clause 9.1(b)bis as follows:
|
“9.1(b)bis With
effect from the date of the 2020 Amendment Agreement, the Borrower shall pay to the Agent (for the account of the Lenders for application
pro rata to their Commitments) a commitment fee in the amount of [*] per cent. ([*]%) per
annum on the daily undrawn 2020 Deferral Commitment. The commitment fee shall be payable in arrears on the date of each advance
or deemed advance, as applicable, of the 2020 Deferral Tranche in accordance with Clause 4.9 or, if cancelled, on the date of cancellation
of the 2020 Deferral Tranche.”
|
|
(l)
|
Clause 12.2 (Information) shall be amended by:
|
|
|
(i)
|
deleting sub-clause (b); and
|
|
|
(ii)
|
deleting sub-clause (c) and replacing it with the following wording:
|
“(c)
as soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter for the first three
quarters in any fiscal year and within 90 days for the final quarter) a copy of the unaudited consolidated quarterly management
accounts of the Guarantor (it being understood that the delivery by the Guarantor of quarterly or annual reports as filed with
the Securities and Exchange Commission in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements
of this paragraph (c))”.
|
|
(m)
|
Clause 18.4 (Breach of other obligations) shall be amended by adding a new sub-clause (c)
as follows:
|
“(c)
any breach of any financial covenant contained in Clause 11.15 of the Guarantee arising on a testing date during the Deferral Period
shall not, subject to no (i) Event of Default under Clauses 18.7 (Winding-up) to Clause 18.13 (Cessation of business)
(inclusive) having occurred and being continuing or (ii) 2020 Deferral Prepayment Event having occurred, constitute an Event of
Default.
|
|
(n)
|
A cross-default occurring solely due to a breach of financial covenants in respect of the Guarantee
and applying to the Group in another SACE-backed loan agreement to which the Principles apply shall not, subject to the terms of
the Amended Facility Agreement, result in an Event of Default and, accordingly, a new clause 18.6(e) shall be added as follows:
|
“(e)
No Event of Default will occur, or be deemed to have occurred, under this Clause 18.6 (Cross default) if such Event of Default
occurs during the Deferral Period (but without prejudice to the rights of the Lenders in respect of any further breach that may
occur following the expiry of the Deferral Period) and is caused solely as a result of a breach of financial covenants in respect
of the Group equivalent to those set out in clause 11.15 of the Guarantee, under, or in relation to, any other SACE-backed facility
agreement to which a Guarantor is a Party or has executed a Guarantee and to which the Principles apply, unless at the time of
such Event of Default, an event resulting in mandatory prepayment of the Loan pursuant to Clause 16.3 (Mandatory prepayment
– sale and total loss) and Clause 16.4 (Mandatory prepayment – SACE insurance policy) or a 2020 Deferral
Payment Event has occurred.”
|
|
(o)
|
Clause 19.1 (Receipts) shall be amended by deleting sub-clause (a) and replacing it with
the following wording:
|
“(a)
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 17 (Interest on Late Payments), third, to interest payable pursuant
to Clause 6 (Interest) and to any deferred costs payable pursuant to Clause 6.4 (Deferred Costs), fourth, to the
principal of the Loan payable pursuant to Clause 5 (Repayment), fifth, to any sums due pursuant to Clause 20.2 (Breakage
costs and SIMEST arrangements) and, sixth, to any other sums due under this Agreement or any other Finance Document and, if
relevant, pro rata to each of the Lenders; or”;
|
|
(p)
|
A new clause 38 (Bail-In) shall be added as follows:
|
38
Bail-In Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding
between the parties to a Finance Document, each Party acknowledges and accepts that any liability of any party to a Finance Document
under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges
and accepts to be bound by the effect of:
|
|
(i)
|
any Bail-In Action in relation to any such liability, including (without limitation):
|
|
|
(A)
|
a reduction, in full or in part, in the principal amount, or outstanding amount due (including
any accrued but unpaid interest) in respect of any such liability;
|
|
|
(B)
|
a conversion of all, or part of, any such liability into shares or other instruments of ownership
that may be issued to, or conferred on, it; and
|
|
|
(C)
|
a cancellation of any such liability; and
|
|
|
(ii)
|
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In
Action in relation to any such liability,
|
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(q)
|
A new clause 39 (Confidentiality of funding rates and reference bank quotations) shall be
added as follows:
|
39 Confidentiality
of funding rates and reference bank quotations.
39.1 Confidentiality
and disclosure
|
|
(a)
|
The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and
(d) below.
|
|
|
(b)
|
The Agent may disclose:
|
|
|
(i)
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower
pursuant to Clause 6.6 (Notification of Interest Periods and Floating Interest Rate);
|
|
|
(ii)
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration
services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide
those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially
in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other
form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
|
|
|
(c)
|
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose
any Funding Rate, to:
|
|
|
(i)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers,
auditors, partners and representatives, if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant
to this sub-paragraph (i) is informed in writing of its confidential nature and that it may be price sensitive information except
that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
|
|
(ii)
|
any person to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is
to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable
to do so in the circumstances;
|
|
|
(iii)
|
any person to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding
Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive
information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as
the case may be, it is not practicable to do so in the circumstances; and
|
|
|
(iv)
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
|
|
(d)
|
The Agent’s obligations in this Clause 39 (Confidentiality of Funding Rates and Reference
Bank Quotations) relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under
Clause 6.6 (Notification of Interest Periods and Floating Interest Rate) provided that (other than pursuant to sub-paragraph
(i) of paragraph (b) above) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such
notification.
|
39.2 Related
obligations
|
|
(a)
|
The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not
to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
|
|
(b)
|
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the
relevant Lender or Reference Bank, as the case may be:
|
|
|
(i)
|
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of (c) of Clause 39.1
(Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph
during the ordinary course of its supervisory or regulatory function; and
|
|
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this Clause 39 (Confidentiality
of Funding Rates and Reference Bank Quotations).
|
39.3 No
Event of Default
No Event
of Default will occur under Clause 18.4 (Breach of other obligations) by reason only of an Obligor’s failure to comply
with this Clause 39 (Confidentiality of Funding Rates and Reference Bank Quotations).
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
5.2
|
Specific Amendments to Guarantee
|
With effect
on and from the Effective Date, Clause 11.3 (Provision of financial statements) of the Guarantee shall be, and shall be
deemed by this Agreement to be amended as follows:
|
|
(a)
|
deleting sub-clause (b) and replacing it with the following wording:
|
“(b) as
soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter in respect of the first
three quarters of each fiscal year and 90 days in respect of the final quarter) a copy of the unaudited consolidated quarterly
management accounts of the Guarantor certified as to their correctness by the chief financial officer of the Guarantor (it being
understood that the delivery by the Guarantor of quarterly or annual reports as filed with the Securities and Exchange Commission
in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements of this paragraph (b))”;
|
|
(b)
|
deleting sub-clause (e)(i); and
|
|
|
(c)
|
deleting sub-clause (e)(ii)(x),
|
and,
for the avoidance of doubt, subject to the provisions of Clause 5.5 (Borrower and Creditor Parties’ Confirmations and
Waivers) and Clause 6.5 (Breach of new covenants or the Principles), the financial
covenants will continue to be tested and the reporting obligations shall continue to apply in accordance with clause 11.3 (Provision
of financial statements) of the Guarantee (as amended and supplemented by this Agreement) in respect of the Deferral Period.
|
|
5.3
|
Guarantor confirmation
|
On the Effective Date the Guarantor
confirms that:
|
|
(a)
|
its Guarantee extends to the obligations of the Borrower under the Finance Documents as amended
and supplemented by this Agreement;
|
|
|
(b)
|
the obligations of the relevant Obligors under the Finance Documents as amended and supplemented
by this Agreement are included in the Secured Liabilities (as defined in the Facility Agreement); and
|
|
|
(c)
|
the Guarantee continues to have full force and effect in accordance with its terms as so extended.
|
|
|
5.4
|
Security confirmation
|
Without prejudice to the provisions
of the Mortgage Addendum, on the Effective Date, each Obligor confirms that:
|
|
(a)
|
any Security Interest created by it under the Finance Documents extends to the obligations of the
relevant Obligors under the Finance Documents as amended and supplemented by this Agreement;
|
|
|
(b)
|
the obligations of the relevant Obligors under the Finance Documents as amended and supplemented
by this Agreement are included in the Secured Liabilities (as defined in the Finance Documents to which it is a party);
|
|
|
(c)
|
the Security Interests created under the Finance Documents continue in full force and effect on
the terms of the respective Finance Documents; and
|
|
|
(d)
|
to the extent that this confirmation creates a new Security Interest, such Security Interest shall
be on the terms of the Finance Documents in respect of which this confirmation is given.
|
|
|
5.5
|
Borrower and Creditor Parties’ Confirmations and Waivers
|
|
|
(a)
|
Notwithstanding the amendments to the testing of the financial covenants contemplated by Clause
5.2, the Borrower and the Guarantor confirm that the reporting obligations under clause 11.3 (Provision
of financial statements) of the Guarantee (as amended and supplemented by this Agreement) in respect of such financial covenants
shall continue to apply. The Agent confirms that any breach of such financial covenants arising on a testing date during the Deferral
Period by reference to the financial position of the Group (on a consolidated basis), shall not (without prejudice to the rights
of the Lenders in respect of any further breach of such financial covenants that may occur following the expiry of the Deferral
Period, and subject further to no (a) Event of Default under Clauses 18.7 (Winding-up) to Clause 18.13 (Cessation
of business) (inclusive) of the Amended Facility Agreement having occurred and being continuing or (b) 2020 Deferral Prepayment
Event having occurred) result in an Event of Default.
|
|
|
(b)
|
For the avoidance of doubt, in addition to the other undertakings the application of which have
not been expressly suspended under this Agreement, the Borrower confirms that the undertaking pursuant to clause 13.7(b) of the
Facility Agreement shall continue to apply in order to permit an inspection of the Ship during the Deferral Period as required
by the Principles.
|
|
|
5.6
|
Finance Documents to remain in full force and effect
|
The Finance Documents shall
remain in full force and effect and, from the Effective Date:
|
|
(a)
|
shall be, and shall be deemed by this Agreement to be amended (where relevant) to include a cross
reference to clause 38 (Bail-in) of the Facility Agreement as amended by this Agreement;
|
|
|
(b)
|
in the case of the Facility Agreement, as amended and supplemented pursuant to Clause 5.1 (Specific
amendments to the Facility Agreement);
|
|
|
(c)
|
in the case of the Guarantee, as amended and supplemented pursuant to Clause 5.2 (Specific Amendments
to Guarantee);
|
|
|
(d)
|
the Facility Agreement and the applicable provisions of this Agreement will be read and construed
as one document;
|
|
|
(e)
|
the Guarantee and the applicable provisions of this Agreement will be read and construed as one
document; and
|
|
|
(f)
|
except to the extent expressly waived by the amendments effected by this Agreement, no waiver is
given by this Agreement and the Lenders expressly reserve all their rights and remedies in respect of any breach of or other default
under the Finance Documents.
|
|
|
6.1
|
Payments under the Shipbuilding Contracts
|
Until the 2020 Deferral
Final Repayment Date:
|
|
(a)
|
the Guarantor shall and the Guarantor shall procure that any member of the Group that has entered
into a shipbuilding contract with a shipbuilder or enters into any such shipbuilding contract, in each case which is financed with
the support of SACE (the “Covered Shipbuilding Contracts”) shall continue to
perform all of their respective obligations as set out in any Covered Shipbuilding Contract (including without limitation the payment
of any instalments due under any Covered Shipbuilding Contract (as the same may have been amended prior to the 2020 Deferral Effective
Date), and subject to any amendment agreed pursuant to Clause 6.1(b) below). The Guarantor shall and the Guarantor shall procure
that any member of the Group shall promptly notify the Agent and SACE of any failure by it to comply with any due and owing obligations
under a Covered Shipbuilding Contract; and
|
|
|
(b)
|
the Guarantor shall and the Guarantor shall procure that any member of the Group further undertakes
to consult with the Agent and SACE in respect of any proposed amendment to a Covered Shipbuilding
Contract insofar as any such proposed amendment relates to a payment instalment or (save as expressly permitted by the relevant
Amended Facility Agreement) a delivery date or any other substantial amendment which may affect the related financing and to obtain
the Agent and SACE’s approval prior to executing any such amendment.
|
No Obligor
shall:
|
|
(a)
|
declare, make or pay any dividend or other distribution (or interest on any unpaid dividend or
other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);
|
|
|
(b)
|
repay or distribute any dividend or share premium reserve;
|
|
|
(c)
|
make any repayment of any kind under any shareholder loan; or
|
|
|
(d)
|
redeem, repurchase (whether by way of share buy-back program or otherwise), defease, retire or
repay any of its share capital or resolve to do so,
|
during the
period up to and including the 2020 Deferral Final Repayment Date, except that (i) any Obligor
may pay dividends and other distributions, directly or indirectly, to the Guarantor for the purpose
of providing liquidity to the Guarantor to enable the Guarantor to satisfy payment obligations for which the Guarantor is an obligor
and (ii) any Obligor may pay dividends in respect of the
tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for each relevant
jurisdiction of the Group or holder of the Guarantor’s capital stock with respect to income taxable as a result of any member
of the Group being taxed as a pass-through entity for U.S. Federal, state and local income tax purposes or attributable to any
member of the Group, provided that the actions in paragraph (ii) above shall only be permitted if there is no Event of Default
which is continuing under the Amended Facility Agreement and no Event of Default would arise from the payment of such dividend.
|
|
6.3
|
New capital raises or financing
|
|
|
(a)
|
Save as provided below:
|
|
|
(i)
|
no new debt or equity issuance shall be raised and no new Financial Indebtedness shall be incurred
by the Group (including, for the avoidance of doubt, inter-company loans);
|
|
|
(ii)
|
no non-arm’s length disposals of any asset relating to the Group fleet shall be made; and
|
|
|
(iii)
|
no additional Security Interests securing existing Financial Indebtedness will be created or permitted
to subsist,
|
during the
period up to and including the 2020 Deferral Final Repayment Date.
|
|
(b)
|
The restrictions in Clause 6.3(a) shall not apply in relation to:
|
|
|
(i)
|
any refinancing of any bond issuance of, or loan entered into by, the Group and maturing during
such period, and which, in each case, has been (or will be) listed in the Information Package submitted to the Agent prior to the
2020 Deferral Effective Date;
|
|
|
(ii)
|
any debt or equity issuance being raised prior to 31 December 2021 to provide the Group with crisis
and/or recovery related funding in respect of the impact of the Covid-19 pandemic;
|
|
|
(iii)
|
any debt or equity issuance being raised on or after 31 December 2021 to support the Group with
the impact of the Covid-19 pandemic, made with the prior written consent of SACE;
|
|
|
(iv)
|
any debt or equity issuance being raised to finance any instalment of a cruise vessel already contracted
for or contracted for during such period or any refurbishment, maintenance, upgrade or lengthening of a cruise ship during such
period;
|
|
|
(v)
|
any debt or equity issuance being raised to finance capital expenditure for projects which are
already contracted for but in respect of which committed financing has not yet been obtained, and which, in each case has been
(or will be) listed in the Information Package submitted to the Agent prior to the 2020 Deferral Effective Date;
|
|
|
(vi)
|
any extension of revolving credit facilities;
|
|
|
(vii)
|
any new debt or equity issuance otherwise agreed by SACE; or
|
|
|
(viii)
|
any inter-company loan which:
|
|
|
(A)
|
is existing as of the date of the 2020 Amendment Agreement;
|
|
|
(B)
|
is made among any Group members provided that:
|
|
|
(1)
|
any inter-company loan is made solely for the purpose of regulatory or tax purposes carried out
in the ordinary course of business and on an arm’s length basis; and
|
|
|
(2)
|
the aggregate principal amount of any inter-company loans outstanding pursuant to this Clause 6.3(b)(viii)(B)
does not exceed fifty million Dollars ($50,000,000) at any time; or
|
|
|
(C)
|
has been approved with the prior written consent of SACE.
|
|
|
6.4
|
Additional financial reporting
|
In addition
to the information to be provided in accordance with clause 12.2 (Information) of the Amended
Facility Agreement and clause 11.3 (Provision of financial statements) (as amended and supplemented by this Agreement) of
the Guarantee, the Guarantor undertakes to provide to the Agent a written report (in form and substance satisfactory to SACE):
|
|
(a)
|
from the Effective Date until the end of the Deferral Period, on a monthly basis within ten (10)
days after the end of each month, covering the cashflow projections for each month for the period from the date of the relevant
report until 31 March 2022, with a first monthly period commencing on 1 April 2020; and
|
|
|
(b)
|
thereafter until the 2020 Deferral Final Repayment Date, on a quarterly basis within forty-five
(45) days after the end of each quarter, covering the cashflow projections for the following twenty-four (24) months, with the
first quarterly period commencing on 1 April 2021.
|
|
|
6.5
|
Breach of new covenants or the Principles
|
Failure
to comply with the provisions of Clauses 6.1 to 6.4 inclusive and deferred costs payable pursuant to Clause 5.1(h)(ii) in
respect of the 2020 Deferral Tranche, or to otherwise duly perform and observe the other requirements and obligations set out in
the Principles shall, in each case, not constitute an Event of Default under the Facility Agreement but shall (in the case of any
failure that is capable of remedy (in the opinion of the Agent, at its sole discretion), including any failure to comply with Clause
6.1 or Clause 6.4, only if such failure is not remedied within the Relevant Period pursuant to clause 18.4 of the Amended Facility
Agreement from the date of such failure to comply):
|
|
(a)
|
reinstate from the date of such breach the requirement to comply with the financial covenants set
out in clause 11.15 (Financial covenants) of the Guarantee which was otherwise suspended by operation of this Agreement;
|
|
|
(b)
|
in respect of Clauses 6.2 (Dividend restriction) and 6.3 (New capital raises or financing):
|
|
|
(A)
|
the 2020 Deferral Commitments and the availability of the 2020 Deferral Tranche will be immediately
cancelled;
|
|
|
(B)
|
all or part of the 2020 Deferral Tranche, together with accrued interest, deferred costs pursuant
to clause 6.4 (Deferred Costs) of the Amended Facility Agreement and all other amounts accrued or outstanding under the
Amended Facility Agreement in connection with the 2020 Deferral Tranche will be immediately due and payable, (including, for the
avoidance of doubt, any breakage costs pursuant to clause 20.2 (Breakage costs and SIMEST arrangements) of the Facility
Agreement); and
|
|
|
(c)
|
in respect of Clauses 6.1 (Payments under the Shipbuilding Contracts) and 6.4 (Additional
financial reporting), entitle the Agent, (acting on the instructions of the Lenders), by notice to the Borrower to:
|
|
|
(A)
|
cancel the 2020 Deferral Commitments and the availability of the 2020 Deferral Tranche whereupon
it shall immediately be cancelled; and
|
|
|
(B)
|
declare that all or part of the 2020 Deferral Tranche, together with accrued interest, deferred
costs pursuant to clause 6.4 (Deferred Costs) of the Amended Facility Agreement and all other amounts accrued or outstanding
under the Amended Facility Agreement in connection with the 2020 Deferral Tranche be immediately due and payable, whereupon they
shall become immediately due and payable (including, for the avoidance of doubt, any breakage costs pursuant to clause 20.2 (Breakage
costs sand SIMEST arrangements) of the Facility Agreement).
|
Clause 12.19 (further assurance)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
|
|
(a)
|
Clause 10.11 (transaction costs) of the Facility Agreement, as amended and supplemented
by this Agreement, applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
|
|
|
(b)
|
The Borrower shall pay to each of (i) the Agent (for the account of each Lender) and (ii) SACE
a handling fee in the amount and at times agreed in the 2020 Deferral Fee Letters.
|
Clause 31 (notices)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
This Agreement 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
Agreement.
|
|
11
|
Signing Electronically
|
The Parties
acknowledge and agree that they may execute this Agreement and any variation or amendment to the same, by electronic instrument.
The Parties agree that the electronic signatures appearing on the documents shall have the same effect as handwritten signatures
and the use of an electronic signature on this Agreement shall have the same validity and legal effect as the use of a signature
affixed by hand and is made with the intention of authenticating this Agreement, and evidencing the Parties’ intention to
be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise
each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests
including contract management.
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
|
|
(a)
|
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 or any non-contractual
obligation arising out of or in connection with this Agreement) (a "Dispute").
|
|
|
(b)
|
The Obligors accept that the courts of England are the most appropriate and convenient courts to
settle Disputes and accordingly no Obligor will argue to the contrary.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other
than an Obligor incorporated in England and Wales):
|
|
|
(i)
|
irrevocably appoints Hannaford Turner LLP, currently of 9 Cloak Lane, London EC4R 2RU, UK as its
agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document;
and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate
the proceedings concerned.
|
|
|
(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent
for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within 10 days of such
event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for
this purpose.
|
This Agreement has been entered into
on the date stated at the beginning of this Agreement.
Execution
Pages – Splendor – Supplemental Agreement
BORROWER
|
SIGNED by
|
)
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
EXPLORER II NEW BUILD, LLC
|
)
|
|
GUARANTOR
|
SIGNED by
|
)
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
NCL CORPORATION LTD.
|
)
|
|
CHARTERER
|
SIGNED by
|
)
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
SEVEN SEAS CRUISES S. DE R.L.
|
)
|
|
SHAREHOLDER
|
SIGNED by
|
)
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
SEVEN SEAS CRUISES S. DE R.L.
|
)
|
|
LENDERS
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE
|
)
|
|
|
AND INVESTMENT BANK
|
)
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
SOCIÉTÉ GÉNÉRALE
|
)
|
|
|
SIGNED by
|
)
|
/s/ Claudia D’Amico
|
|
duly authorised
|
)
|
Director, Export and Asset Finance, HSBC Bank plc
|
|
for and on behalf of
|
)
|
|
|
HSBC BANK PLC
|
)
|
|
|
SIGNED by
|
)
|
/s/ Natasha Seel
|
|
duly authorised
|
)
|
Attorney-in-fact
|
|
for and on behalf of
|
)
|
|
|
KFW IPEX-BANK GMBH
|
)
|
|
MANDATED LEAD ARRANGERS
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE
|
)
|
|
|
AND INVESTMENT BANK
|
)
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
SOCIÉTÉ GÉNÉRALE
|
)
|
|
|
SIGNED by
|
)
|
/s/ Claudia D’Amico
|
|
duly authorised
|
)
|
Director, Export and Asset Finance, HSBC Bank plc
|
|
for and on behalf of
|
)
|
|
|
HSBC BANK PLC
|
)
|
|
|
SIGNED by
|
)
|
/s/ Natasha Seel
|
|
duly authorised
|
)
|
Attorney-in-fact
|
|
for and on behalf of
|
)
|
|
|
KFW IPEX-BANK GMBH
|
)
|
|
AGENT
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
)
|
|
INVESTMENT
BANK )
SACE AGENT
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
)
|
|
|
INVESTMENT BANK
|
)
|
|
SECURITY TRUSTEE
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
)
|
|
|
INVESTMENT BANK
|
)
|
|
Exhibit 10.3
Execution Version
[*]: THE IDENTIFIED INFORMATION HAS
BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED
Dated 4 June 2020
AMENDMENT TO TERM LOAN FACILITY
RIVIERA
NEW BUILD, LLC
as Borrower
and
NCL CORPORATION LTD.
as Guarantor
and
OCEANIA CRUISES S. DE R.L.
as Charterer
and Shareholder
and
The Banks
and Financial Institutions
LISTED IN SCHEDULE 1
as Lenders
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
SOCIÉTÉ GÉNÉRALE
as Mandated Lead Arrangers
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
as Agent
and SACE Agent
SUPPLEMENTAL
AGREEMENT
relating to a facility agreement originally
dated 18 July 2008 (as amended by a supplemental agreement dated 25 October 2010, a side letter dated 29 March 2012, as amended
and restated by an amendment and restatement agreement dated 31 October 2014 and as further amended by a framework agreement dated
31 January 2018) in respect of the part financing of the passenger cruise ship m.v. "RIVIERA" Index
|
|
Index
|
Page
|
|
|
|
|
|
Clause
|
|
|
|
|
|
|
1
|
Definitions and Interpretation
|
3
|
|
2
|
Conditions Precedent and Conditions
Subsequent
|
5
|
|
3
|
Representations
|
6
|
|
4
|
Acknowledgment and Acceptance of the
Principles
|
7
|
|
5
|
Amendments to Facility Agreement and
other Finance Documents
|
7
|
|
6
|
New Covenants
|
24
|
|
7
|
Further Assurance
|
28
|
|
8
|
Costs and Expenses
|
28
|
|
9
|
Notices
|
28
|
|
10
|
Counterparts
|
28
|
|
11
|
Signing Electronically
|
28
|
|
12
|
Governing Law
|
28
|
|
13
|
Enforcement
|
28
|
|
|
|
|
|
Schedules
|
|
|
|
|
|
|
Schedule
1 Lenders and Commitments
|
30
|
|
Schedule
2 Conditions Precedent
|
31
|
|
Schedule
3 Repayment Schedule
|
33
|
|
Schedule
4 Information Package
|
34
|
|
Schedule
5 Form of Effective Date Certificate
|
35
|
|
|
|
|
Execution
|
|
|
|
|
THIS
AGREEMENT is made on 4 June 2020
Parties
|
|
(1)
|
RIVIERA NEW BUILD, LLC, a
limited liability company formed in the Marshall Islands whose registered address is
at c/o The Trust Company of the Marshall Islands Inc., Trust Company Complex, Ajeltake
Island, Majuro MH 96960, Republic of the Marshall Islands as borrower (the "Borrower")
|
|
|
(2)
|
NCL CORPORATION LTD., an exempted
company incorporated under the laws of Bermuda with its registered office at Cumberland
House, 9th Floor, 1 Victoria Street, Hamilton HM11, Bermuda (the "Guarantor")
|
|
|
(3)
|
OCEANIA CRUISES S. DE R.L.,
a Panamanian limited liability company (sociedad de responsabilidad limitada) organised
and existing under the laws of the Republic of Panama, having its office in the Republic
of Panama with its Resident Agent being Arias Fabrega with address at Arifa Building,
West Boulevard, Santa Maria Business District, Panama, Republic of Panama and registered
at the Mercantile Section of the Panama Public Registry at Microjacket No. 423671, Document
396130 since 3 October 2002 (the "Charterer" and "Shareholder")
|
|
|
(4)
|
THE FINANCIAL INSTITUTIONS
listed in Schedule 1 (Lenders and Commitments) as lenders (the "Lenders")
|
|
|
(5)
|
CRÉDIT AGRICOLE CORPORATE
AND INVESTMENT BANK a French société anonyme having its registered
office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered
under number Siren 304 187 701 at the Registre du Commerce et des Sociétés
of Nanterre, France and SOCIÉTÉ GÉNÉRALE a French
société anonyme having its registered office located at 29 Boulevard Haussmann,
75009 Paris under number Siren 552 120 222 at the Registre du Commerce et des Sociétés
of Paris, France as mandated lead arrangers (the "Mandated
Lead Arrangers")
|
|
|
(6)
|
CRÉDIT AGRICOLE CORPORATE
AND INVESTMENT BANK, a French société anonyme having its registered
office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered
under number Siren 304 187 701 at the Registre du Commerce et des Sociétés
of Nanterre, France as agent and SACE agent (the "Agent"
and the "SACE Agent")
|
Background
|
|
(A)
|
By the Facility Agreement, the Lenders
agreed to make available to the Borrower a facility of originally the Dollar Equivalent
of up to EUR 349,520,718 for the purpose of assisting the Borrower in financing (i) payment
under the Shipbuilding Contract of all or part of 80% of the Final Contract Price up
to the Eligible Amount and (ii) payment to SACE of the Dollar Equivalent of 100% of the
second instalment of the SACE Premium payable on the original Drawdown Date.
|
|
|
(B)
|
Due to the unprecedented and extraordinary
impacts of the Covid-19 pandemic on the cruise sector and cruise operators, SACE S.p.A.
has informed the cruise operators of its availability to evaluate certain measures (the
"Temporary Measures") applicable in relation to certain qualifying
loan agreements in order to assist companies which are financially sound but dealing
with the impact of the temporary but unprecedented Covid-19 pandemic; the possibility
to access to such measures is subject, amongst other things, to certain principles dated
15 April 2020 for cruise lines offered by SACE (as further defined below, the "Principles").
|
|
|
(C)
|
Pursuant to the consent request letter
dated 18 April 2020, the Borrower and the Guarantor notified
the Agent and the SACE Agent of the wish to benefit from the Temporary Measures in relation
to certain loan agreements listed therein, including the Facility Agreement, and requested,
amongst other things, the deferral of repayments of principal under the Facility Agreement
for a period of one year from 1 April 2020 to 31 March 2021 (the "Borrower Request").
|
|
|
(D)
|
On 25
May 2020, the Agent (for and on behalf of the Lenders) and SACE provided their
consent to part of the Borrower Request in accordance with and subject to certain conditions
as set out in this supplemental agreement (the "Agreement").
|
|
|
(E)
|
The Parties have agreed to enter
into this Agreement for the purposes of, inter alia, documenting the required
amendments identified in the Principles.
|
Operative
Provisions
|
|
1
|
Definitions and Interpretation
|
In this Agreement:
"2020
Deferral Fee Letters" means any letter between the Agent
and any Obligor which sets out the fees payable in connection with the arrangements contemplated by this Agreement.
"2020
Deferral Prepayment Event" means the occurrence of any event entitling the Agent to exercise any rights granted to it
pursuant to Clause 6.5 (Breach of new covenants or the Principles) of this Agreement, including, without limitation, the
ability to cancel any part, or demand the immediate repayment of, the 2020 Deferral Tranche and to terminate the waiver of the
financial covenants granted pursuant to clause 11.15 of the Guarantee as amended by this Agreement.
"2020
Deferral Final Repayment Date" means the Repayment Date falling 3 years and six months after the 2020 Deferral Repayment
Starting Point, or, if earlier, the date on which the 2020 Deferral Tranche has been repaid or prepaid in full.
"2020
Deferral Repayment Starting Point" means
the date of the first Repayment Date falling after 31 March 2021, namely 27 April 2021.
"2020
Deferral Tranche" means the part of the Loan made or to be made available (or deemed made or to be deemed to be made
available) to the Borrower to finance or refinance (as the case may be) the aggregate of the 2020 Deferred Repayment Instalments
and the related premium payable to SACE (amounting to [*] per cent. ([*]%) of the Total Commitments
as of 1 April 2020) in a principal amount not exceeding forty-five million, eight hundred and twenty eight thousand, nine hundred
and sixty-five Dollars and eighty-four Cents ($45,828,965.84).
"2020
Deferred Repayment Instalments" means the repayment instalments in principal due during the Deferral Period as set out
pursuant to Schedule 3 (Repayment schedule).
"2020
Finance Documents" means this Agreement, each Supplemental Security Document and each 2020 Deferral Fee Letter.
"Amended
Facility Agreement" means the Facility Agreement as amended and supplemented by this Agreement.
"Deferral
Period" means the period from 1 April 2020 to 31 March 2021.
"Effective
Date" means the date on which the Agent notifies the Borrower, the other Creditor Parties and SACE as to the satisfaction
of the conditions precedent as provided in Clause 2.1(a).
"Facility
Agreement" means the facility agreement dated 18 July 2008 (as amended from time to time, including pursuant to
a supplemental agreement dated 25 October 2010, a side letter dated 29 March 2012, an amendment and restatement agreement dated
31 October 2014 and the Framework Agreement) and made between, amongst others, (i) the Borrower, (ii) the Lenders, (iii) the Mandated
Lead Arrangers and (iv) the Agent and the SACE Agent.
"Framework
Agreement" means the framework agreement dated 31 January 2018 and entered into between, amongst others, (i) the
Borrower, (ii) the Guarantor, (iii) the Shareholder and Charterer, (iv) the Lenders and (v) DekaBank Deutsche Girozentrale as
new lender (the “New Lender”), pursuant to which Société Générale in its capacity
as Lender sold [*] per cent. ([*]%) of its participation in the Loan to the New Lender.
"Information
Package" means the information package in connection with the "Debt Holiday" application in the form
set out in Schedule 4 (Information Package) to this Agreement, submitted, or to be submitted (as the case may be), by the
Borrower (or the Guarantor on its behalf) in order to obtain the benefit of the measures provided for in the Principles for the
purpose of the Facility Agreement (as amended) and certain of the Borrower’s and the Guarantor’s obligations under
the Facility Agreement.
"Mortgage
Addendum" means the addendum to the Mortgage in the agreed form.
"Obligors"
means the Borrower, the Guarantor, the Charterer and the Shareholder.
"Party"
means a party to this Agreement.
"Principles"
means the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April 2020, which sets out certain
key principles and parameters relating to the qualifying Loan Agreements (as defined therein) and being applicable to SACE-covered
loan agreements such as the Facility Agreement.
"SACE"
means SACE S.p.A., an Italian joint stock company (società per azioni) with a sole shareholder, whose registered
office is located at Piazza Poli 37/42, 00187 Rome, Italy and registered with the Companies Registry of Rome under number 05804521002.
"Supplemental
Security Document" means each of:
|
|
(i)
|
the Supplemental Tripartite
General Assignment; and
|
|
|
(ii)
|
the Mortgage Addendum.
|
"Supplemental
Tripartite General Assignment" means a second priority assignment, supplemental to the Tripartite General Assignment,
dated on or about the date of this Agreement and made between the parties to the Tripartite General Assignment.
"Tripartite
General Assignment" means the tripartite general assignment dated 27 April 2012 and entered into between the Borrower,
the Charterer, the Lenders and the Agent.
Defined expressions in the
Facility Agreement and, with effect from the Effective Date, the Amended Facility Agreement, shall have the same meanings when
used in this Agreement unless the context otherwise requires or unless otherwise defined in this Agreement.
|
|
1.3
|
Application of construction and interpretation
provisions of Facility Agreement
|
Clause 1.2 (construction
of certain terms) of the Facility Agreement applies to this Agreement as if it were expressly incorporated in it with any
necessary modifications.
|
|
1.4
|
Agreed forms of new, and supplements
to, Finance Documents
|
References in Clause 1.1 (Definitions)
to any new or supplement to a Finance Document being in "agreed form" are to that Finance Document:
|
|
(a)
|
in a form attached to a certificate
dated the same date as this Agreement (and signed by the Borrower and the Agent); or
|
|
|
(b)
|
in any other form agreed in writing
between the Borrower, the Agent and the Lenders acting with the authorisation of the
Majority Lenders.
|
|
|
1.5
|
Designation as a Finance Document
|
The Borrower and the Agent
designate this Agreement as a Finance Document.
|
|
(a)
|
Unless provided to the contrary in
a Finance Document, a person who is not a Party has no right under the Contracts (Rights
of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or
to enjoy the benefit of any term of this Agreement other than SACE, who may enforce or
to enjoy the benefit of and rely on the provisions of this Agreement and the Amended
Facility Agreement subject to the provisions of the Third Parties Act.
|
|
|
(b)
|
Notwithstanding any term of any Finance
Document, the consent of any person who is not a Party (other than SACE) is not required
to rescind or vary this Agreement at any time.
|
|
|
(c)
|
For the avoidance of doubt and in
accordance with clause 33.4 (Third party rights) of the Facility Agreement, nothing
in this Clause 1.6 (Third party rights) shall limit or prejudice the exercise
by SACE of its rights under this Agreement or the Finance Documents in the event that
such rights are subrogated or assigned to it pursuant to the terms of the SACE Insurance
Policy.
|
|
|
2
|
Conditions Precedent and Conditions
Subsequent
|
|
|
2.1
|
The
Effective Date cannot occur unless:
|
|
|
(a)
|
the Agent has received (or on the
instructions of all the Lenders, waived receipt of) all of the documents and other evidence
listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory
to the Agent;
|
|
|
(b)
|
save
as disclosed in writing to the Agent and SACE prior to the date of this Agreement, the
representations and warranties contained in Clause 3 (Representations) are true
and correct on, and as of, each such time as if each was made with respect to the facts
and circumstances existing at such time;
|
|
|
(c)
|
save
as disclosed in writing to the Agent and SACE prior to the date of this Agreement, no
Event of Default, event or circumstance specified in clause 18 (Events of Default)
which would (with the expiry of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of the foregoing)
be an Event of Default, event resulting in mandatory prepayment of the Loan pursuant
to clause 16.3 (Mandatory prepayment) of the Facility Agreement or 2020 Deferral
Prepayment Event shall have occurred and be continuing or would result from the amendment
of the Facility Agreement pursuant to this Agreement; and
|
|
|
(d)
|
the Agent is satisfied that the Effective
Date can occur and have not provided any instructions to the contrary informing the Parties
that the Effective Date cannot occur.
|
|
|
2.2
|
Upon fulfilment or waiver
of the conditions set out in Clause 2.1 above, the Agent shall provide the Borrower and
the Lenders with a copy of the executed certificate in the form set out in Schedule 5
(Form of Effective Date Certificate) confirming that the Effective Date has occurred
and such certificate shall be binding on all Parties.
|
|
|
2.3
|
Other than to the extent that
the Majority Lenders notify the Agent in writing to the contrary before the Agent provides
the certificate described in Clause 2.2 above, the Creditor Parties authorise (but do
not require) the Agent to execute and provide such certificate. The Agent shall not be
liable for any damages, costs or losses whatsoever as a result of giving any such certificate.
|
|
|
2.4
|
On the Effective Date, the
Borrower shall ensure that any notice of assignment in respect of Insurances under the
Supplemental Tripartite General Assignment is given to the relevant broker or insurer
and that it obtains a letter of undertaking from each relevant broker that it has endorsed
the notice of assignment on each policy.
|
|
|
3.1
|
Facility Agreement representations
|
On the date of this Agreement
and on the Effective Date, each Obligor that is a party to the Facility Agreement makes each of the representations and warranties
as set out in clause 12 (representations and warranties) of the Facility Agreement as amended and supplemented by this
Agreement and updated with appropriate modifications to refer to the 2020 Finance Documents and where appropriate, any Supplemental
Security Document.
|
|
3.2
|
Finance Document representations
|
Each Obligor makes the representations
and warranties set out in the Finance Documents (other than the Facility Agreement) to which it is a party, as amended and supplemented
by this Agreement and updated with appropriate modifications to refer to this Agreement and, where appropriate, any Supplemental
Security Document, by reference to the circumstances then existing on the date of this Agreement.
|
|
4
|
Acknowledgment and Acceptance of the
Principles
|
Each
Obligor confirms its acknowledgment to the Principles and full acceptance of all terms, requirements and conditions thereunder.
|
|
5
|
Amendments to Facility Agreement and
other Finance Documents
|
|
|
5.1
|
Specific amendments to the Facility
Agreement
|
With effect on and from the
Effective Date the Facility Agreement shall be, and shall be deemed by this Agreement to be, amended as follows, so that, inter
alia, the principal amount of the Loan will not be increased (save for the premium to be advanced in accordance with Clause
5.1(e) below) but the repayment terms of, and the interest rate applicable to the relevant part of the Loan will be changed to
reflect the repayment profile and interest terms for the 2020 Deferral Tranche on the basis set out in this Agreement:
|
|
(a)
|
In clause 1.1 (Definitions)
of the Facility Agreement, the following definitions shall be added in alphabetical order:
|
|
|
(i)
|
"2020 Amendment Agreement"
means the amendment to this Agreement dated 4 June 2020 between, amongst others, the Borrower,
the Agent and the SACE Agent.
|
|
|
(ii)
|
"2020 Deferral Commitment"
means in relation to any Lender listed in Schedule 1 to the 2020 Amendment Agreement,
the amount in Dollars expressed as a percentage set opposite its name under the heading
"Commitment" and the amount of any other commitment attributable to it (including
the related premium payable to SACE) under this Agreement in respect of the 2020 Deferral
Tranche.
|
|
|
(iii)
|
"2020 Deferral Effective
Date" has the meaning given to the term Effective Date in the 2020 Amendment
Agreement.
|
|
|
(iv)
|
"2020 Deferral Fee
Letters" means any letter between the Agent and any Obligor which sets
out the fees payable in connection with the arrangements contemplated by the 2020 Amendment
Agreement.
|
|
|
(v)
|
"2020 Deferral Final Repayment
Date" means the Repayment Date falling 3 years and six months after the 2020
Deferral Repayment Starting Point, or, if earlier, the date on which the 2020 Deferral
Tranche has been repaid or prepaid in full.
|
|
|
(vi)
|
"2020 Deferral Prepayment
Event" means the occurrence of any event entitling the Agent to exercise any
rights granted to it pursuant to Clause 6.5 (Breach of new covenants or the Principles)
of the 2020 Amendment Agreement, including, without limitation, the ability to cancel
any part, or demand the immediate repayment of, the 2020 Deferral Tranche and to terminate
the waiver of the financial covenants granted pursuant to clause 11.15 of the Guarantee
as amended by the 2020 Amendment Agreement.
|
|
|
(vii)
|
"2020
Deferral Repayment
Starting Point" means the date of the first Repayment Date falling after
31 March 2021, namely 27 April 2021.
|
"2020
Deferral Tranche" means the part of the Loan made or to be made available to the Borrower to finance or refinance (as
the case may be) the aggregate of the 2020 Deferred Repayment Instalments and the related premium payable to SACE (amounting to
[*] per cent. ([*]%) of the Total Commitments as of 1 April 2020) in a principal amount not exceeding
forty-five million, eight hundred and twenty eight thousand, nine hundred and sixty-five Dollars and eighty-four Cents ($45,828,965.84).
|
|
(viii)
|
"2020 Deferred Repayment
Instalments" means the repayment instalments due during the Deferral Period
as set out pursuant to Schedule 3 (Repayment schedule).
|
|
|
(ix)
|
"Article 55 BRRD"
means Article 55 of Directive 2014/59/EU establishing a framework for the recovery
and resolution of credit institutions and investment firms.
|
|
|
(x)
|
"Bail-In
Action" means the exercise of any Write-down and Conversion Powers.
|
|
|
(xi)
|
"Bail-In
Legislation" means:
|
|
|
(i)
|
in relation to an EEA Member Country
which has implemented, or which at any time implements, Article 55 BRRD, the relevant
implementing law or regulation as described in the EU Bail-In Legislation Schedule from
time to time; and
|
|
|
(ii)
|
in relation to any state other
than such an EEA Member Country or (to the extent that the United Kingdom is not such
an EEA Member Country) the United Kingdom, any analogous law or regulation from time
to time which requires contractual recognition of any Write-down and Conversion Powers
contained in that law or regulation.
|
|
|
(xii)
|
"Deferred Costs Percentage"
means 0.72% p.a.
|
|
|
(xiii)
|
"Deferral Period"
means the period from 1 April 2020 to 31 March 2021.
|
|
|
(xiv)
|
"Deferral Repayment
Date" has the meaning given to such term in Clause 5.5 (Repayment of 2020
Deferral Tranche).
|
|
|
(xv)
|
"Deferral Repayment
Instalments" has the meaning given to such term in Clause 5.5 (Repayment
of 2020 Deferral Tranche).
|
|
|
(xvi)
|
"EEA
Member Country" means any member state of the European Union, Iceland,
Liechtenstein and Norway.
|
|
|
(xvii)
|
"EU
Bail-In Legislation Schedule" means the document described as such and
published by the Loan Market Association (or any successor person) from time to time.
|
|
|
(xviii)
|
"Funding
Rate" means any individual rate notified by a Lender to the Agent
pursuant to sub-paragraph (i) of paragraph (e) of Clause 6.10 (Cost of funds).
|
|
|
(xix)
|
"Interpolated
Screen Rate" means, in relation to the Loan or any part of the Loan,
the rate which results from interpolating on a linear basis between:
|
|
|
(i)
|
the applicable Screen Rate for
the longest period (for which that Screen Rate is available) which is less than the Interest
Period of the Loan or that part of the Loan; and
|
|
|
(ii)
|
the applicable Screen Rate for
the shortest period (for which that Screen Rate is available) which exceeds the Interest
Period of the Loan or that part of the Loan,
|
each as
of the Specified Time for Dollars.
|
|
(xx)
|
"Principles"
means the document titled "Cruise Debt Holiday Principles" offered by SACE
dated 15 April 2020, which sets out certain key principles and parameters relating to
the qualifying Loan Agreements (as defined therein) and being applicable to SACE-covered
loan agreements such as this Agreement.
|
|
|
(xxi)
|
"Reference
Bank Rate" means the arithmetic mean of the rates (rounded upwards to
four decimal places) as supplied to the Agent at its request by the Reference Banks:
|
|
|
(A)
|
the Reference Bank is a contributor
to the Screen Rate; and
|
|
|
(B)
|
it consists of a single figure,
|
as the rate
(applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked
to submit to the relevant administrator; or
|
|
(ii)
|
in any other case, as the rate
at which the relevant Reference Bank could fund itself in Dollars for the relevant period
with reference to the unsecured wholesale funding market.
|
|
|
(xxii)
|
"Reference
Bank Quotation" means any quotation supplied to the Agent by a Reference
Bank.
|
|
|
(xxiii)
|
"Reference
Banks" means such entities as may be
appointed by the Agent in consultation with the Borrower.
|
|
|
(xxiv)
|
"Relevant
Interbank Market" means the London interbank market.
|
|
|
(xxv)
|
"Relevant Nominating
Body" means any applicable central bank, regulator or other supervisory authority
or a group of them, or any working group or committee sponsored or chaired by, or constituted
at the request of, any of them or the Financial Stability Board.
|
|
|
(xxvi)
|
"Replacement Benchmark"
means a benchmark rate which is:
|
|
|
(i)
|
formally designated, nominated
or recommended as the replacement for a Screen Rate by:
|
|
|
(A)
|
the administrator of that Screen
Rate (provided that the market or economic reality that such benchmark rate measures
is the same as that measured by that Screen Rate); or
|
|
|
(B)
|
any Relevant Nominating Body,
|
and if replacements
have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Benchmark"
will be the replacement under paragraph (B) above;
|
|
(ii)
|
in the opinion of the Majority
Lenders and the Borrower, generally accepted in the international or any relevant domestic
syndicated loan markets as the appropriate successor to a Screen Rate; or
|
|
|
(iii)
|
in the opinion of the Majority
Lenders and the Borrower, an appropriate successor to a Screen Rate.
|
|
|
(xxvii)
|
"Resolution
Authority" means any body which has authority to exercise any Write-down
and Conversion Powers.
|
|
|
(xxviii)
|
"Screen
Rate" means the London interbank offered rate administered by ICE Benchmark
Administration Limited (or any other person which takes over the administration of that
rate) for Dollars for the relevant period displayed (before any correction, recalculation
or republication by the administrator) on page LIBOR01 of the Thomson Reuters screen
(or any replacement Thomson Reuters page which displays that rate) or on the appropriate
page of such other information service which publishes that rate from time to time in
place of Thomson Reuters. If such page or service ceases to be available, the Agent may
specify another page or service displaying the relevant rate after consultation with
the Borrower.
|
|
|
(xxix)
|
"Screen
Rate Contingency Period" means fifteen (15) Business Days.
|
|
|
(xxx)
|
"Screen
Rate Replacement Event" means, in relation to a Screen Rate:
|
|
|
(i)
|
the methodology, formula or other
means of determining that Screen Rate has, in the opinion of the Majority Lenders and
the Borrower materially changed;
|
|
|
(1)
|
the administrator of that Screen
Rate or its supervisor publicly announces that such administrator is insolvent; or
|
|
|
(2)
|
information is published in any order,
decree, notice, petition or filing, however described, or filed with a court, tribunal,
exchange, regulatory authority or similar administrative, regulatory or judicial body
which reasonably confirms that the administrator of that Screen Rate is insolvent,
|
provided
that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
|
(B)
|
the administrator of that Screen
Rate publicly announces that it has ceased or will cease, to provide that Screen Rate
permanently or indefinitely and, at that time, there is no successor administrator to
continue to provide that Screen Rate;
|
|
|
(C)
|
the supervisor of the administrator
of that Screen Rate publicly announces that such Screen Rate has been or will be permanently
or indefinitely discontinued; or
|
|
|
(D)
|
the administrator of that Screen
Rate or its supervisor announces that that Screen Rate may no longer be used; or
|
|
|
(iii)
|
the administrator of that Screen
Rate determines that that Screen Rate should be calculated in accordance with its reduced
submissions or other contingency or fallback policies or arrangements and either:
|
|
|
(A)
|
the circumstance(s) or event(s)
leading to such determination are not (in the opinion of the Majority Lenders and the
Borrower) temporary; or
|
|
|
(B)
|
that Screen Rate is calculated
in accordance with any such policy or arrangement for a period no less than the Screen
Rate Contingency Period; or
|
|
|
(iv)
|
in the opinion of the Majority
Lenders and the Borrower, that Screen Rate is otherwise no longer appropriate for the
purposes of calculating interest under this Agreement.
|
|
|
(xxxi)
|
"Specified
Time" means a day or time determined in accordance with the following:
|
|
|
(i)
|
if LIBOR is fixed, the Quotation
Day as of 11:00 am London time; and
|
|
|
(ii)
|
in relation to a Reference Bank
Rate calculated by reference to the available quotations in accordance with Clause 6.8
(Calculation of Reference Bank Rate), noon on the Quotation Day.
|
|
|
(xxxii)
|
"Supplemental Security
Document" means each of:
|
|
|
(i)
|
the Supplemental Tripartite General
Assignment; and
|
|
|
(ii)
|
the Mortgage Addendum.
|
|
|
(xxxiii)
|
"Supplemental
Tripartite General Assignment" means a second priority assignment, supplemental
to the Tripartite General Assignment, dated on or about the date of the 2020 Amendment
Agreement and made between the Borrower, the Charterer the Lenders and the Agent.
|
|
|
(xxxiv)
|
"Tripartite
General Assignment" means the tripartite general assignment dated 27
April 2012 and entered into between the Borrower, the Charterer, the Lenders and the
Agent.
|
|
|
(xxxv)
|
"UK Bail-In Legislation"
means (to the extent that the United Kingdom is not an EEA Member Country which has implemented,
or implements, Article 55 BRRD) Part 1 of the United Kingdom Banking Act 2009 and any
other law or regulation applicable in the United Kingdom relating to the resolution of
unsound or failing banks, investment firms or other financial institutes or their affiliates
(otherwise than through liquidation, administration or other insolvency proceedings).
|
|
|
(xxxvi)
|
"Write-down
and Conversion Powers" means:
|
|
|
(i)
|
in relation to any Bail-In Legislation
described in the EU Bail-In Legislation Schedule from time to time, the powers described
as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
|
|
|
(ii)
|
in relation to any other applicable
Bail-In Legislation:
|
|
|
(A)
|
any powers under that Bail-In
Legislation to cancel, transfer or dilute shares issued by a person that is a bank or
investment firm or other financial institution or affiliate of a bank, investment firm
or other financial institution, to cancel, reduce, modify or change the form of a liability
of such a person or any contract or instrument under which that liability arises, to
convert all or part of that liability into shares, securities or obligations of that
person or any other person, to provide that any such contract or instrument is to have
effect as if a right had been exercised under it or to suspend any obligation in respect
of that liability or any of the powers under that Bail-In Legislation that are related
to or ancillary to any of those powers; and
|
|
|
(B)
|
any similar or analogous powers
under that Bail-In Legislation; and
|
|
|
(iii)
|
in relation to any UK Bail-In
Legislation:
|
|
|
(A)
|
any powers under that UK Bail-In
Legislation to cancel, transfer or dilute shares issued by a person that is a bank or
investment firm or other financial institution or affiliate of a bank, investment firm
or other financial institution, to cancel, reduce, modify or change the form of a liability
of such a person or any contract or instrument under which that liability arises, to
convert all or part of that liability into shares, securities or obligations of that
person or any other person, to provide that any such contract or instrument is to have
effect as if a right had been exercised under it or to suspend any obligation in respect
of that liability or any of the powers under that UK Bail-In Legislation that are related
to or ancillary to any of those powers; and
|
|
|
(B)
|
any similar or analogous powers
under that UK Bail-In Legislation.
|
|
|
(b)
|
In clause 1.1 (Definitions)
of the Facility Agreement, the following definitions shall be amended as follows:
|
|
|
(i)
|
the definition of "Commitment"
shall be amended by adding the following wording after the wording "set opposite
its name in Schedule 1":
|
"(including,
in relation to a Lender, its 2020 Deferral Commitment)";
|
|
(ii)
|
the definition of "Finance
Documents" shall be amended by adding the 2020 Amendment Agreement, the 2020 Deferral
Fee Letters and the Supplemental Security Documents as Finance Documents;
|
|
|
(iii)
|
the definition of "General
Assignment" shall be deleted and replaced as follows:
|
“"General
Assignment" means the Tripartite General Assignment, as supplemented by the Supplemental Tripartite General Assignment.”
|
|
(iv)
|
the definition of "LIBOR"
shall be deleted and replaced as follows:
|
"LIBOR"
means, in relation to the Loan or any part of the Loan:
(A) the
applicable Screen Rate as of the Specified Time for Dollars and for a period equal in length to the Interest Period of the Loan
or that part of the Loan; or
(B) as otherwise
determined pursuant to Clause 6.7 (Unavailability of Screen Rate).
and if,
in either case, that rate is less than zero, LIBOR shall be deemed to be zero;"
|
|
(v)
|
the definition of "Loan"
shall be deleted and replaced as follows:
|
""Loan"
means the loan made or to be made under this Agreement (including under the 2020 Deferral Tranche) or the principal amount outstanding
for the time being of that loan ";
|
|
(vi)
|
the definition of "Maximum
Loan Amount" shall be deleted and replaced as follows:
|
"Maximum
Loan Amount" means the aggregate of (a) the Dollar Equivalent of Euro 334,590,328.80; and (b) 100% of the second instalment
of the SACE Premium payable on the original Drawdown Date, with (X) the Loan currently outstanding on the 2020 Deferral Effective
Date being equal to $179,661,276.87 and (Y) an amount equal to $45,828,965.84 (under the 2020
Deferral Tranche) being available for utilisation,
(and which
for this purpose includes the aggregate amount of the 2020 Deferral Tranche (including the related premium payable to SACE to
be financed thereunder)) to be made (or deemed to be made) available as provided for in this Agreement";
|
|
(vii)
|
the definition of "Overnight
LIBOR" shall be deleted and replaced as follows:
|
"Overnight
LIBOR" means, in relation to the Loan or any part of
the Loan:
|
|
(A)
|
on any date, the applicable day
to day Screen Rate as of the Specified Time for Dollars; or
|
|
|
(B)
|
as otherwise determined pursuant
to Clause 6.7 (Unavailability of Screen Rate),
|
and if,
in either case, that rate is less than zero, Overnight LIBOR shall be deemed to be zero; and
|
|
(viii)
|
the definition of "Quotation
Date" shall be deleted and replaced as follows:
|
“"Quotation
Day" means in relation to any period for which an interest rate is to be determined, two Business Days before
the first day of that period unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will
be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally
be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days)”,
and all references
to "Quotation Date" shall be replaced with references to "Quotation Day".
|
|
(c)
|
Clause 3.1 (General) shall
be amended by inserting a new final sentence as follows:
|
"This
Clause 3 (Conditions Precedent) shall not apply to the 2020 Deferral Tranche, save for Clause 3.10."
|
|
(d)
|
A new clause 3.10 shall be inserted
as follows:
|
"The
relevant part of the 2020 Deferral Tranche shall only be advanced if the Agent shall have received (a) no later than five (5)
Business Days before the date of the relevant advance (and only if required under Clause 4.9 hereunder), a Drawdown Notice from
the Borrower, signed by a duly authorised signatory of the Borrower, specifying the amount of the 2020 Deferral Tranche to be
drawn down, and (b) on the relevant date of the relevant advance or deemed advance (as applicable):
|
|
(i)
|
save
as disclosed in writing to the Agent and SACE prior to the date of the 2020 Amendment
Agreement, no Event of Default is continuing or would result from such advance
or deemed advance (as applicable) and no 2020 Deferral Prepayment Event or event
or circumstance specified in clause 18 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any determination under
the Finance Documents or any combination of any of the foregoing) be an Event of Default
has occurred; and
|
|
|
(ii)
|
save
as disclosed in writing to the Agent and SACE prior to the date of the 2020 Amendment
Agreement, each of the repeating representations set out in Clause 12 (Representations
and warranties) are true as at such date by reference to the facts and circumstances
existing at such date."
|
|
|
(e)
|
The drawdown mechanics of the Facility
Agreement shall be amended to allow for drawdown of the 2020 Deferral Tranche as follows:
|
|
|
(i)
|
The following new clause 4.9
shall be added:
|
“4.9
2020 Deferral Tranche. Pursuant to the 2020 Amendment Agreement, the Lenders have agreed (but without increasing the Maximum
Loan Amount and the Total Commitments of each Lender save for the related premium to be advanced in accordance with paragraph
(C) below) to make available to the Borrower the 2020 Deferral Tranche as follows:
|
|
(A)
|
on each Repayment Date during
the Deferral Period, a portion of the 2020 Deferral Tranche in an amount equal to the
relevant 2020 Deferred Repayment Instalment due on such Repayment Date shall be automatically
drawn by the Borrower and applied towards repayment of the relevant 2020 Deferred Repayment
Instalment due on such date. Each such advance under the 2020 Deferral Tranche shall
be automatic and notional only, and effected by means of a book entry to finance the
2020 Deferred Instalments then due;
|
|
|
(B)
|
if a 2020 Deferred Repayment
Instalment has fallen due and been paid during the Deferral Period and prior to the 2020
Deferral Effective Date (the “Paid Amount”), on the date falling five
(5) Business Days after the Effective Date (as such term is described in the 2020 Amendment
Agreement), an amount equal to the Paid Amount shall be reimbursed to the Borrower to
the account notified by the Borrower to the Agent on or prior to the Effective Date in
accordance with the relevant Drawdown Notice; and
|
|
|
(C)
|
together with the first advance
under this Clause 4.9 (2020 Deferral Tranche), a portion of the 2020 Deferral
Tranche in an amount equal to the amount to be paid to SACE in respect of the premium
payable to SACE due on the first advance under the 2020 Deferral Tranche shall be drawn
by the Borrower and paid to SACE as specified in the relevant Drawdown Notice.
|
Accordingly,
the other provisions of this Clause 4 shall not apply to the advance of the 2020 Deferral Tranche
and each advance of the 2020 Deferral Tranche under this Clause 4.9 (2020 Deferral Tranche) (A) shall be deemed to satisfy
the Borrower’s obligations under Clause 5 (Repayment) in respect of the corresponding 2020 Deferred Repayment Instalment.”,
and clause
2.3 (Purpose of Loan) and clause 4.4 (Availability) of the Facility Agreement shall be deemed amended and supplemented
accordingly by this Agreement.
|
|
(f)
|
The repayment provisions of the Facility
Agreement shall be amended to provide for the repayment of the 2020 Deferral Tranche
as follows:
|
|
|
(i)
|
In Clause 5.1, the words “Subject
to Clause 5.5 (Repayment of 2020 Deferral Tranche),” shall be added before
“The Borrower”;
|
|
|
(ii)
|
In Clause 5.2, the words “Subject
to Clause 5.5 (Repayment of 2020 Deferral Tranche),” shall be added before
“The first instalment”;
|
|
|
(iii)
|
In Clause 5.3, the words
“Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),” shall
be added before “Each of the”;
|
|
|
(iv)
|
In Clause 5.4, the words “Subject
to Clause 5.5 (Repayment of 2020 Deferral Tranche),” shall be added before
“On the final Repayment Date”;
|
|
|
(v)
|
A new paragraph 5.5 to the
Facility Agreement shall be added as follows:
|
“5.5
Repayment of 2020 Deferral Tranche. Subject to Clause 4.9 (2020 Deferral Tranche), the 2020 Deferral Tranche shall
be repaid in eight semi-annual instalments beginning on the 2020 Deferral Repayment Starting Point and until the 2020 Deferral
Final Repayment Date as set out below. Each such instalment shall be a “Deferral Repayment Instalment” and
each date on which a Deferral Repayment Instalment is payable shall be a “Deferral Repayment Date”.”
|
|
(g)
|
The voluntary prepayment provisions
of the Facility Agreement shall be amended by adding to the end of clause 16.2 (Voluntary
prepayment) the following paragraph:
|
“Any
voluntary prepayment shall be made in accordance with the provisions of this Clause 16.2 and applied against the outstanding repayment
instalments in the inverse order of their maturity, save that where there is an amount of the 2020 Deferral Tranche outstanding,
any such prepayment shall first be applied against such 2020 Deferral Tranche in the inverse order of maturity.”
|
|
(h)
|
The interest provisions of the Facility
Agreement shall be amended:
|
|
|
(i)
|
to confirm that interest will
accrue on the relevant part of the 2020 Deferral Tranche at a floating rate, clause 6
(Interest) shall be amended by adding a new clause 6.3 as follows:
|
“6.3
Interest in respect of 2020 Deferral Tranche. The rate of interest for each Interest Period in respect of the 2020 Deferral
Tranche shall be the Floating Interest Rate.”; and
|
|
(ii)
|
to reflect the increased costs
of the Lenders in connection with the deferral arrangements contemplated by this Agreement
and the 2020 Amendment Agreement, clause 6 (Interest) shall be amended by adding
a new clause 6.4 as follows:
|
“6.4
Deferred Costs. Independently to any other obligation to pay costs, expenses or interest under or in connection with this
Agreement, the Borrower shall, as a separate obligation, also pay to the Agent (for distribution to each Lender) deferred costs
in respect of any drawn portion of the 2020 Deferral Tranche at the Deferred Costs Percentage for each Interest Period during
which any part of the 2020 Deferral Tranche remains outstanding. Whilst not an interest liability, such deferred costs shall be
charged from and including the first day of the applicable Interest Period in which an amount of the 2020 Deferral Tranche is
outstanding to (but not including) the last day of such Interest Period, and will be payable semi-annually in arrears on each
interest payment date. Any deferred costs payable in accordance with this Clause 6.4 (Deferred Costs) shall be calculated
on the basis of the actual number of days elapsed over a year comprised of 360 days. Any non-payment of such deferred costs shall
be an Event of Default in accordance with Clause 18.2 (Non-payment).”,
and, for
the avoidance of doubt, interest due during the Deferral Period and as contemplated in the Facility Agreement will continue to
be paid and the remaining clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(i)
|
Clauses 6.5 (Market disruption)
to clause 6.10 (Alternative rate of interest in absence of agreement) inclusive
of the Facility Agreement shall be deleted and replaced by the following provisions:
|
“6.7
Unavailability of Screen Rate
|
|
(a)
|
Interpolated Screen Rate:
If no Screen Rate is available for LIBOR for the Interest Period of the Loan or any part
of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period
equal in length to the Interest Period of the Loan or that part of the Loan.
|
|
|
(b)
|
Reference Bank Rate:
If no Screen Rate is available for LIBOR for:
|
|
|
(ii)
|
the Interest Period of the Loan
or any part of the Loan and it is not possible to calculate the Interpolated Screen Rate,
|
|
|
(iii)
|
the applicable LIBOR shall be
the Reference Bank Rate as of the Specified Time and for a period equal in length to
the Interest Period of the Loan or that part of the Loan.
|
|
|
(c)
|
Cost of funds: If paragraph
(b) above applies but no Reference Bank Rate is available for Dollars or the relevant
Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable)
and Clause 6.10 (Cost of funds) shall apply to
the Loan or that part of the Loan for that Interest Period.
|
6.8 Calculation
of Reference Bank Rate
|
|
(a)
|
Subject to paragraph (b) below,
if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank
does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated
on the basis of the quotations of the remaining Reference Banks.
|
|
|
(b)
|
If at or about noon on the
Quotation Day none or only one of the Reference Banks supplies a quotation, there shall
be no Reference Bank Rate for the relevant Interest Period.
|
6.9 Market
Disruption
If before
close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notification from a Lender
or Lenders (whose participations in the Loan or the relevant part of the Loan in aggregate exceed 50 per cent. of the Loan or
the relevant part of the Loan as appropriate) that the cost to it or each of them of funding its participation in the Loan or
that part of the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 6.10 (Cost of funds)
shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
6.10
Cost of funds
|
|
(a)
|
If this Clause 6.10 (Cost
of funds) applies, the rate of interest on the Loan or the relevant part of the Loan
for the relevant Interest Period shall be the percentage rate per annum which is the
sum of:
|
|
|
(ii)
|
the weighted average of the rates
notified to the Agent by each Lender as soon as practicable and in any event before interest
is due to be paid in respect of that Interest Period to be that which expresses as a
percentage rate per annum the cost to the relevant Lender of funding its participation
in the Loan or that part of the Loan from whatever source it may reasonably select.
|
|
|
(b)
|
If this Clause 6.10 (Cost
of funds) applies and the Agent or the Borrower so requires, the Agent and the Borrower
shall enter into negotiations (for a period of not more than 30 days) with a view to
agreeing a substitute basis for determining the rate of interest or (as the case may
be) an alternative basis for funding.
|
|
|
(c)
|
Subject to Clause 6.11
(Replacement of Screen Rate), any substitute or alternative basis agreed pursuant
to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower,
be binding on all Parties.
|
|
|
(d)
|
If paragraph (e) below does
not apply and any rate notified to the Agent under sub-paragraph (ii) of paragraph (a)
above is less than zero, the relevant rate shall be deemed to be zero.
|
|
|
(e)
|
If this Clause 6.10 (Cost
of funds) applies pursuant to Clause 6.9 (Market disruption) and:
|
|
|
(i)
|
a Lender's Funding Rate is less
than LIBOR; or
|
|
|
(ii)
|
a Lender does not supply a quotation
by the time specified in sub-paragraph (ii) of paragraph (a) above,
|
the cost
to that Lender of funding its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed,
for the purposes of paragraph (a) above, to be LIBOR.
|
|
(f)
|
If this Clause 6.10 (Cost
of funds) applies but any Lender does not supply a quotation by the time specified
in sub-paragraph (ii) of paragraph (a) above, the rate of interest shall be calculated
on the basis of the quotations of the remaining Lenders.
|
6.11
Replacement of Screen Rate
If a Screen
Rate Replacement Event has occurred in relation to the Screen Rate for Dollars, any amendment or waiver which relates to:
|
|
(i)
|
providing for the use of a Replacement
Benchmark; and
|
|
|
(A)
|
aligning any provision of any
Finance Document to the use of that Replacement Benchmark;
|
|
|
(B)
|
enabling that Replacement Benchmark
to be used for the calculation of interest under this Agreement (including, without limitation,
any consequential changes required to enable that Replacement Benchmark to be used for
the purposes of this Agreement);
|
|
|
(C)
|
implementing market conventions
applicable to that Replacement Benchmark;
|
|
|
(D)
|
providing for appropriate fallback
(and market disruption) provisions for that Replacement Benchmark; or
|
|
|
(E)
|
adjusting the pricing to reduce
or eliminate, to the extent reasonably practicable, any transfer of economic value from
one Party to another as a result of the application of that Replacement Benchmark (and
if any adjustment or method for calculating any adjustment has been formally designated,
nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined
on the basis of that designation, nomination or recommendation),
|
may be made
with the consent of the Agent (acting on the instructions of the Majority Lenders), SACE and SIMEST (if applicable) and the Borrower,
and the
remaining clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(j)
|
The interest period mechanics of
the Facility Agreement shall be updated to reflect the existence of the 2020 Deferral
Tranche as follows:
|
|
|
(i)
|
in clause 7.1 (Floating
interest rate), adding the words ‘or, in the case of the 2020 Deferral Tranche’
after the words ‘pursuant to Clause 3.5(b);
|
|
|
(ii)
|
adding a new clause 7.4 as
follows:
|
“(c)
The first Interest Period in relation to each advance or deemed advance (as applicable) under the 2020 Deferral Tranche shall
start on the date of such advance or deemed advance (as applicable) and end on the last day of the current Interest Period in
respect of the Loan, following which all Interest Periods will be consolidated.”.
|
|
(k)
|
The provisions of clause 10.1(b)
shall be amended by adding a new clause 10.1(b)bis as follows:
|
“10.1(b)bis
With effect from the date of the 2020 Amendment Agreement, the Borrower shall pay to the Agent (for the account of the Lenders
for application pro rata to their Commitments) a commitment fee in the amount of [*] per
cent. ([*]%) per annum on the daily undrawn 2020 Deferral Commitment. The commitment fee shall be payable in arrears on the date
of each advance or deemed advance, as applicable, of the 2020 Deferral Tranche in accordance with Clause 4.9 or, if cancelled,
on the date of cancellation of the 2020 Deferral Tranche.”
|
|
(l)
|
Clause 13.2 (Information)
shall be amended by deleting sub-clause (b) and replacing it with the following wording:
|
“(b)
as soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter for the first three
quarters in any fiscal year and within 90 days for the final quarter) a copy of the unaudited consolidated quarterly management
accounts of the Guarantor (it being understood that the delivery by the Guarantor of quarterly or annual reports as filed with
the Securities and Exchange Commission in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements
of this paragraph (b))”.
|
|
(m)
|
Clause 18.4 (Breach of other obligations)
shall be amended by adding a new sub-clause (c) as follows:
|
“(c)
any breach of any financial covenant contained in Clause 11.15 of the Guarantee arising on a testing
date during the Deferral Period shall not, subject to no (i) Event of Default under Clauses 18.7 (Winding-up) to Clause
18.13 (Cessation of business) (inclusive) having occurred and being continuing or (ii) 2020 Deferral Prepayment Event having
occurred, constitute an Event of Default.”
|
|
(n)
|
A cross-default occurring solely
due to a breach of financial covenants in respect of the Guarantee and applying to the
Group in another SACE-backed loan agreement to which the Principles apply shall not,
subject to the terms of the Amended Facility Agreement, result in an Event of Default
and, accordingly, a new clause 18.6(e) shall be added as follows:
|
“(e)
No Event of Default will occur, or be deemed to have occurred, under this Clause 18.6 (Cross default) if such Event of
Default occurs during the Deferral Period (but without prejudice to the rights of the Lenders in respect of any further breach
that may occur following the expiry of the Deferral Period) and is caused solely as a result of a breach of financial covenants
in respect of the Group equivalent to those set out in clause 11.15 of the Guarantee, under, or in relation to, any other SACE-backed
facility agreement to which a Guarantor is a Party or has executed a Guarantee and to which the Principles apply, unless at the
time of such Event of Default, an event resulting in mandatory prepayment of the Loan pursuant to Clause 16.3 (Mandatory prepayment)
or a 2020 Deferral Payment Event has occurred.”
|
|
(o)
|
Clause 19.1
(Receipts) shall be amended by deleting sub-clause (a) and replacing it with the
following wording:
|
“(a) 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 17 (Interest on late payments), third, to interest payable pursuant to Clause
6 (Interest) and to any deferred costs payable pursuant to Clause 6.4 (Deferred costs), fourth, to the principal
of the Loan payable pursuant to Clause 5 (Repayment), fifth, to any other sums due under this Agreement or any other Finance
Document and, if relevant, pro rata to each of the Lenders and sixth, to any sums due pursuant to Clause 20.2 (Breakage Costs);
or”.
|
|
(p)
|
A new clause 33.7 (Bail-In)
shall be added as follows:
|
33.7
Bail-In. Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between
the parties to a Finance Document, each Party acknowledges and accepts that any liability of any party to a Finance Document under
or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges
and accepts to be bound by the effect of:
|
|
(i)
|
any Bail-In Action in relation
to any such liability, including (without limitation):
|
|
|
(A)
|
a reduction, in full or in part,
in the principal amount, or outstanding amount due (including any accrued but unpaid
interest) in respect of any such liability;
|
|
|
(B)
|
a conversion of all, or part
of, any such liability into shares or other instruments of ownership that may be issued
to, or conferred on, it; and
|
|
|
(C)
|
a cancellation of any such liability;
and
|
|
|
(ii)
|
a variation of any term of
any Finance Document to the extent necessary to give effect to any Bail-In Action in
relation to any such liability,
|
and the
remaining clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(q)
|
A new clause 34 (Confidentiality
of funding rates and reference bank quotations) shall be added as follows:
|
34 Confidentiality
of funding rates and reference bank quotations.
34.1
Confidentiality and disclosure
|
|
(a)
|
The Agent and each Obligor
agree to keep each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation)
confidential and not to disclose it to anyone, save to the extent permitted by paragraphs
(b), (c) and (d) below.
|
|
|
(b)
|
The Agent may disclose:
|
|
|
(i)
|
any Funding Rate (but not, for
the avoidance of doubt, any Reference Bank Quotation) to the Borrower pursuant to Clause
6.6 (Notification of Interest Periods and Floating Interest Rate);
|
|
|
(ii)
|
any Funding Rate or any Reference
Bank Quotation to any person appointed by it to provide administration services in respect
of one or more of the Finance Documents to the extent necessary to enable such service
provider to provide those services if the service provider to whom that information is
to be given has entered into a confidentiality agreement substantially in the form of
the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service
Providers or such other form of confidentiality undertaking agreed between the Agent
and the relevant Lender or Reference Bank, as the case may be.
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|
|
(c)
|
The Agent may disclose any
Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding
Rate, to:
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|
|
(i)
|
any of its Affiliates and any of
its or their officers, directors, employees, professional advisers, auditors, partners
and representatives, if any person to whom that Funding Rate or Reference Bank Quotation
is to be given pursuant to this sub-paragraph (i) is informed in writing of its confidential
nature and that it may be price sensitive information except that there shall be no such
requirement to so inform if the recipient is subject to professional obligations to maintain
the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise
bound by requirements of confidentiality in relation to it;
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|
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(ii)
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any person to whom information is
required or requested to be disclosed by any court of competent jurisdiction or any governmental,
banking, taxation or other regulatory authority or similar body, the rules of any relevant
stock exchange or pursuant to any applicable law or regulation if the person to whom
that Funding Rate or Reference Bank Quotation is to be given is informed in writing of
its confidential nature and that it may be price sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Agent or the relevant
Obligor, as the case may be, it is not practicable to do so in the circumstances;
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|
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(iii)
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any person to whom information
is required to be disclosed in connection with, and for the purposes of, any litigation,
arbitration, administrative or other investigations, proceedings or disputes if the person
to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing
of its confidential nature and that it may be price sensitive information except that
there shall be no requirement to so inform if, in the opinion of the Agent or the relevant
Obligor, as the case may be, it is not practicable to do so in the circumstances; and
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|
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(iv)
|
any person with the consent
of the relevant Lender or Reference Bank, as the case may be.
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(d)
|
The Agent’s obligations
in this Clause 34 (Confidentiality of Funding Rates and Reference Bank Quotations)
relating to Reference Bank Quotations are without prejudice to its obligations to make
notifications under Clause 6.6 (Notification of Interest Periods and Floating Interest
Rate) provided that (other than pursuant to sub-paragraph (i) of paragraph
(b) above) the Agent shall not include the details of any individual Reference Bank Quotation
as part of any such notification.
|
34.2
Related obligations
|
|
(a)
|
The Agent and each Obligor
acknowledge that each Funding Rate (and, in the case of the Agent, each Reference Bank
Quotation) is or may be price sensitive information and that its use may be regulated
or prohibited by applicable legislation including securities law relating to insider
dealing and market abuse and the Agent and each Obligor undertake not to use any Funding
Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
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(b)
|
The Agent and each Obligor
agree (to the extent permitted by law and regulation) to inform the relevant Lender or
Reference Bank, as the case may be:
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|
|
(i)
|
of the circumstances of any disclosure
made pursuant to sub-paragraph (ii) of (c) of Clause 34.1 (Confidentiality and disclosure)
except where such disclosure is made to any of the persons referred to in that paragraph
during the ordinary course of its supervisory or regulatory function; and
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|
|
(ii)
|
upon becoming aware that any
information has been disclosed in breach of this Clause 34 (Confidentiality of Funding
Rates and Reference Bank Quotations).
|
34.3
No Event of Default
No Event
of Default will occur under Clause 18.4 (Breach of other obligations) by reason only of an Obligor’s failure to comply
with this Clause 34 (Confidentiality of Funding Rates and Reference Bank Quotations).
and the
remaining clauses will be renumbered and all relevant cross references will be updated accordingly.
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|
5.2
|
Specific Amendments to Guarantee
|
With effect
on and from the Effective Date, Clause 11.3 (Provision of financial statements) of the Guarantee shall be, and shall be
deemed by this Agreement to be amended as follows:
|
|
(a)
|
deleting sub-clause (d) and replacing
it with the following wording:
|
“(d) as
soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter in respect of the first
three quarters of each fiscal year and 90 days in respect of the final quarter) a copy of the unaudited consolidated quarterly
management accounts of the Guarantor certified as to their correctness by the chief financial officer of the Guarantor (it being
understood that the delivery by the Guarantor of quarterly or annual reports as filed with the Securities and Exchange Commission
in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements of this paragraph (d))”;
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|
(b)
|
deleting sub-clause (g)(i); and
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|
|
(c)
|
deleting sub-clause (g)(ii)(x),
|
and, for
the avoidance of doubt, subject to the provisions of Clause 5.5 (Borrower and Creditor Parties’ Confirmations and Waivers)
and Clause 6.5 (Breach of new covenants or the Principles), the financial covenants will continue to be tested and the
reporting obligations shall continue to apply in accordance with clause 11.3 (Provision of financial statements) of the
Guarantee (as amended and supplemented by this Agreement) in respect of the Deferral Period.
|
|
5.3
|
Guarantor confirmation
|
On the Effective Date the
Guarantor confirms that:
|
|
(a)
|
its Guarantee extends to the obligations
of the Borrower under the Finance Documents as amended and supplemented by this Agreement;
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|
|
(b)
|
the obligations of the relevant Obligors
under the Finance Documents as amended and supplemented by this Agreement are included
in the Secured Liabilities (as defined in the Facility Agreement); and
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|
|
(c)
|
the Guarantee continues to have full
force and effect in accordance with its terms as so extended.
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|
|
5.4
|
Security confirmation
|
Without prejudice to the provisions
of any Supplemental Security Document, on the Effective Date, each Obligor confirms that:
|
|
(a)
|
any Security Interest created by
it under the Finance Documents extends to the obligations of the relevant Obligors under
the Finance Documents as amended and supplemented by this Agreement;
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|
|
(b)
|
the obligations of the relevant Obligors
under the Finance Documents as amended and supplemented by this Agreement are included
in the Secured Liabilities (as defined in the Finance Documents to which it is a party);
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(c)
|
the Security Interests created under
the Finance Documents continue in full force and effect on the terms of the respective
Finance Documents; and
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|
(d)
|
to the extent that this confirmation
creates a new Security Interest, such Security Interest shall be on the terms of the
Finance Documents in respect of which this confirmation is given.
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|
|
5.5
|
Borrower and Creditor Parties’
Confirmations and Waivers
|
|
|
(a)
|
Notwithstanding the amendments to
the testing of the financial covenants contemplated by Clause 5.2, the Borrower and the
Guarantor confirm that the reporting obligations under clause 11.3
(Provision of financial statements) of the Guarantee (as amended and supplemented
by this Agreement) in respect of such financial covenants shall continue to apply. The
Agent confirms that any breach of such financial covenants arising on a testing date
during the Deferral Period by reference to the financial position of the Group (on a
consolidated basis), shall not (without prejudice to the rights of the Lenders in respect
of any further breach of such financial covenants that may occur following the expiry
of the Deferral Period, and subject further to no (a) Event of Default under Clauses
18.7 (Winding-up) to Clause 18.13 (Cessation of business) (inclusive)
of the Amended Facility Agreement having occurred and being continuing or (b) 2020 Deferral
Prepayment Event having occurred) result in an Event of Default.
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|
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(b)
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For the avoidance of doubt, in addition
to the other undertakings the application of which have not been expressly suspended
under this Agreement, the Borrower confirms that the undertaking pursuant to clause 13.23(c)
of the Facility Agreement shall continue to apply in order to permit an inspection of
the Ship during the Deferral Period as required by the Principles.
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|
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5.6
|
Finance Documents to remain in full
force and effect
|
The Finance Documents shall
remain in full force and effect and, from the Effective Date:
|
|
(a)
|
shall be, and shall be deemed by
this Agreement to be amended (where relevant) to include a cross reference to clause
33.7 (Bail-in) of the Facility Agreement as amended by this Agreement;
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|
|
(b)
|
in the case of the Facility Agreement,
as amended and supplemented pursuant to Clause 5.1 (Specific amendments to the Facility
Agreement);
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|
|
(c)
|
in the case of the Guarantee, as
amended and supplemented pursuant to Clause 5.2 (Specific Amendments to Guarantee);
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|
|
(d)
|
the Facility Agreement and the applicable
provisions of this Agreement will be read and construed as one document;
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|
|
(e)
|
the Guarantee and the applicable
provisions of this Agreement will be read and construed as one document; and
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|
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(f)
|
except to the extent expressly waived
by the amendments effected by this Agreement, no waiver is given by this Agreement and
the Lenders expressly reserve all their rights and remedies in respect of any breach
of or other default under the Finance Documents,
|
and for
the avoidance of doubt, the provisions of the Finance Documents shall continue to apply, notwithstanding that the final repayment
instalment due under clause 5 (Repayment) of the Facility Agreement falls prior to the 2020 Deferral Final Repayment Date.
|
|
6.1
|
Payments under the Shipbuilding
Contracts
|
Until the 2020 Deferral
Final Repayment Date:
|
|
(a)
|
the Guarantor shall and the Guarantor
shall procure that any member of the Group that has entered into a shipbuilding contract
with a shipbuilder or enters into any such shipbuilding contract, in each case which
is financed with the support of SACE (the “Covered Shipbuilding Contracts”)
shall continue to perform all of their respective obligations as set out in any Covered
Shipbuilding Contract (including without limitation the payment of any instalments due
under any Covered Shipbuilding Contract (as the same may have been amended prior to the
2020 Deferral Effective Date), and subject to any amendment agreed pursuant to Clause
6.1(b) below). The Guarantor shall and the Guarantor shall procure that any member of
the Group shall promptly notify the Agent and SACE of any failure by it to comply with
any due and owing obligations under a Covered Shipbuilding Contract; and
|
|
|
(b)
|
the Guarantor shall and the Guarantor
shall procure that any member of the Group further undertakes to consult with the Agent
and SACE in respect of any proposed amendment to a Covered Shipbuilding Contract insofar
as any such proposed amendment relates to a payment instalment or (save as expressly
permitted by the relevant Amended Facility Agreement) a delivery date or any other substantial
amendment which may affect the related financing and to obtain the Agent and SACE’s
approval prior to executing any such amendment.
|
No Obligor
shall:
|
|
(a)
|
declare, make or pay any dividend
or other distribution (or interest on any unpaid dividend or other distribution) (whether
in cash or in kind) on or in respect of its share capital (or any class of its share
capital);
|
|
|
(b)
|
repay or distribute any dividend
or share premium reserve;
|
|
|
(c)
|
make any repayment of any kind under
any shareholder loan; or
|
|
|
(d)
|
redeem, repurchase (whether by way
of share buy-back program or otherwise), defease, retire or repay any of its share capital
or resolve to do so,
|
during the
period up to and including the 2020 Deferral Final Repayment Date, except that (i) any Obligor
may pay dividends and other distributions, directly or indirectly, to the Guarantor for the
purpose of providing liquidity to the Guarantor to enable the Guarantor to satisfy payment obligations for which the Guarantor
is an obligor and (ii) any Obligor may pay dividends in
respect of the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns
for each relevant jurisdiction of the Group or holder of the Guarantor’s capital stock with respect to income taxable as
a result of any member of the Group being taxed as a pass-through entity for U.S. Federal, state and local income tax purposes
or attributable to any member of the Group, provided that the actions in paragraph (ii) above shall only be permitted if
there is no Event of Default which is continuing under the Amended Facility Agreement and no Event of Default would arise from
the payment of such dividend.
|
|
6.3
|
New capital raises or financing
|
|
|
(a)
|
Save as provided below:
|
|
|
(i)
|
no new debt or equity issuance
shall be raised and no new Financial Indebtedness shall be incurred by the Group (including,
for the avoidance of doubt, inter-company loans);
|
|
|
(ii)
|
no non-arm’s length
disposals of any asset relating to the Group fleet shall be made; and
|
|
|
(iii)
|
no additional Security Interests
securing existing Financial Indebtedness will be created or permitted to subsist,
|
during the
period up to and including the 2020 Deferral Final Repayment Date.
|
|
(b)
|
The restrictions in Clause 6.3(a)
shall not apply in relation to:
|
|
|
(i)
|
any refinancing of any bond
issuance of, or loan entered into by, the Group and maturing during such period, and
which, in each case, has been (or will be) listed in the Information Package submitted
to the Agent prior to the 2020 Deferral Effective Date;
|
|
|
(ii)
|
any debt or equity issuance
being raised prior to 31 December 2021 to provide the Group with crisis and/or recovery
related funding in respect of the impact of the Covid-19 pandemic;
|
|
|
(iii)
|
any debt or equity issuance
being raised on or after 31 December 2021 to support the Group with the impact of the
Covid-19 pandemic, made with the prior written consent of SACE;
|
|
|
(iv)
|
any debt or equity issuance
being raised to finance any instalment of a cruise vessel already contracted for or contracted
for during such period or any refurbishment, maintenance, upgrade or lengthening of a
cruise ship during such period;
|
|
|
(v)
|
any debt or equity issuance
being raised to finance capital expenditure for projects which are already contracted
for but in respect of which committed financing has not yet been obtained, and which,
in each case has been (or will be) listed in the Information Package submitted to the
Agent prior to the 2020 Deferral Effective Date;
|
|
|
(vi)
|
any extension of revolving
credit facilities;
|
|
|
(vii)
|
any new debt or equity issuance
otherwise agreed by SACE; or
|
|
|
(viii)
|
any inter-company loan which:
|
|
|
(A)
|
is existing as of the date of
the 2020 Amendment Agreement;
|
|
|
(B)
|
is made among any Group members
provided that:
|
|
|
(1)
|
any inter-company loan is made
solely for the purpose of regulatory or tax purposes carried out in the ordinary course
of business and on an arm’s length basis; and
|
|
|
(2)
|
the aggregate principal amount
of any inter-company loans outstanding pursuant to this Clause 6.3(b)(viii)(B) does not
exceed fifty million Dollars ($50,000,000) at any time; or
|
|
|
(C)
|
has been approved with the prior
written consent of SACE.
|
|
|
6.4
|
Additional financial reporting
|
In addition
to the information to be provided in accordance with clause 13.2 (Information) of the Amended
Facility Agreement and clause 11.3 (Provision of financial statements) (as amended and supplemented by this Agreement)
of the Guarantee, the Guarantor undertakes to provide to the Agent a written report (in form and substance satisfactory to SACE):
|
|
(a)
|
from the Effective Date until the
end of the Deferral Period, on a monthly basis within ten (10) days after the end of
each month covering the cashflow projections for each month for the period from the date
of the relevant report until 31 March 2022, with a first monthly period commencing on
1 April 2020; and
|
|
|
(b)
|
thereafter until the 2020 Deferral
Final Repayment Date, on a quarterly basis within forty-five (45) days after the end
of each quarter, covering the cashflow projections for the following twenty-four (24)
months, with the first quarterly period commencing on 1 April 2021.
|
|
|
6.5
|
Breach of new covenants
or the Principles
|
Failure
to comply with the provisions of Clauses 6.1 to 6.4 inclusive and deferred costs payable pursuant to Clause 5.1(h)(ii) in respect
of the 2020 Deferral Tranche, or to otherwise duly perform and observe the other requirements and obligations set out in the Principles
shall, in each case, not constitute an Event of Default under the Facility Agreement but shall (in the case of any failure that
is capable of remedy (in the opinion of the Agent, at its sole discretion), including any failure to comply with Clause 6.1 or
Clause 6.4, only if such failure is not remedied within the Relevant Period pursuant to clause 18.4 of the Amended Facility Agreement
from the date of such failure to comply):
|
|
(a)
|
reinstate from the date of such breach
the requirement to comply with the financial covenants set out in clause 11.15 (Financial
covenants) of the Guarantee which was otherwise suspended by operation of this Agreement;
|
|
|
(b)
|
in respect of Clauses 6.2 (Dividend
restriction) and 6.3 (New capital raises or financing):
|
|
|
(A)
|
the 2020 Deferral Commitments
and the availability of the 2020 Deferral Tranche will be immediately cancelled;
|
|
|
(B)
|
all or part of the 2020 Deferral
Tranche, together with accrued interest, deferred costs pursuant to clause 6.4 (Deferred
Costs) of the Amended Facility Agreement and all other amounts accrued or outstanding
under the Amended Facility Agreement in connection with the 2020 Deferral Tranche will
be immediately due and payable, (including, for the avoidance of doubt, any breakage
costs pursuant to clause 20.2 (Breakage costs) of the Facility Agreement); and
|
|
|
(c)
|
in respect of Clauses 6.1 (Payments
under the Shipbuilding Contracts) and 6.4 (Additional financial reporting),
entitle the Agent, (acting on the instructions of the Lenders), by notice to the Borrower
to:
|
|
|
(A)
|
cancel the 2020 Deferral Commitments
and the availability of the 2020 Deferral Tranche whereupon it shall immediately be cancelled;
and
|
|
|
(B)
|
declare that all or part of the
2020 Deferral Tranche, together with accrued interest, deferred costs pursuant to clause
6.4 (Deferred Costs) of the Amended Facility Agreement and all other amounts accrued
or outstanding under the Amended Facility Agreement in connection with the 2020 Deferral
Tranche be immediately due and payable, whereupon they shall become immediately due and
payable (including, for the avoidance of doubt, any breakage costs pursuant to clause
20.2 (Breakage costs) of the Facility Agreement).
|
Clause 13.19 (further assurance)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
|
|
(a)
|
Clause 11.6 (transaction costs)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to
this Agreement as if it were expressly incorporated in it with any necessary modifications.
|
|
|
(b)
|
The Borrower shall pay to each of
(i) the Agent (for the account of each Lender) and (ii) SACE a handling fee in the amount
and at times agreed in the 2020 Deferral Fee Letters.
|
Clause 32 (notices)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
This Agreement 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 Agreement.
|
|
11
|
Signing Electronically
|
The Parties
acknowledge and agree that they may execute this Agreement and any variation or amendment to the same, by electronic instrument.
The Parties agree that the electronic signatures appearing on the documents shall have the same effect as handwritten signatures
and the use of an electronic signature on this Agreement shall have the same validity and legal effect as the use of a signature
affixed by hand and is made with the intention of authenticating this Agreement, and evidencing the Parties’ intention to
be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise
each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests
including contract management.
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
|
|
(a)
|
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
or any non-contractual obligation arising out of or in connection with this Agreement)
(a "Dispute").
|
|
|
(b)
|
The Obligors accept that the courts
of England are the most appropriate and convenient courts to settle Disputes and accordingly
no Obligor will argue to the contrary.
|
|
|
(a)
|
Without prejudice to any other mode
of service allowed under any relevant law, each Obligor (other than an Obligor incorporated
in England and Wales):
|
|
|
(i)
|
irrevocably appoints Hannaford
Turner LLP, currently of 9 Cloak Lane, London EC4R 2RU, UK as its agent for service of
process in relation to any proceedings before the English courts in connection with any
Finance Document; and
|
|
|
(ii)
|
agrees that failure by a process
agent to notify the relevant Obligor of the process will not invalidate the proceedings
concerned.
|
|
|
(b)
|
If any person appointed as an agent
for service of process is unable for any reason to act as agent for service of process,
the Borrower (on behalf of all the Obligors) must immediately (and in any event within
10 days of such event taking place) appoint another agent on terms acceptable to the
Agent. Failing this, the Agent may appoint another agent for this purpose.
|
This Agreement has been entered into
on the date stated at the beginning of this Agreement.
Execution
Pages
|
BORROWER
|
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SIGNED by
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)
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/s/ Daniel S. Farkas
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|
duly authorised
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)
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for and on behalf of
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)
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RIVIERA NEW BUILD, LLC
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)
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GUARANTOR
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SIGNED by
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)
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/s/ Daniel S. Farkas
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duly authorised
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)
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for and on behalf of
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)
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NCL CORPORATION LTD.
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)
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CHARTERER
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SIGNED by
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)
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/s/ Daniel S. Farkas
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duly authorised
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)
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for and on behalf of
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)
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OCEANIA CRUISES S. DE R.L.
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)
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SHAREHOLDER
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SIGNED by
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)
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/s/ Daniel S. Farkas
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duly authorised
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)
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for and on behalf of
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)
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OCEANIA CRUISES S. DE R.L.
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)
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LENDERS
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SIGNED by
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)
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/s/ Alexia Russell
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duly authorised
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)
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Attorney in fact
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for and on behalf of
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)
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CRÉDIT AGRICOLE CORPORATE
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)
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AND INVESTMENT BANK
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)
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SIGNED by
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)
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/s/ Alexia Russell
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duly authorised
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)
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Attorney in fact
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for and on behalf of
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)
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SOCIÉTÉ GÉNÉRALE
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)
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SIGNED by
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)
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/s/ Alexia Russell
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duly authorised
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)
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Attorney in fact
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for and on behalf of
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)
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DEKABANK DEUTSCHE GIROZENTRALE
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)
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MANDATED LEAD ARRANGERS
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SIGNED by
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)
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/s/ Alexia Russell
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duly authorised
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)
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Attorney in fact
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for and on behalf of
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)
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CRÉDIT AGRICOLE CORPORATE
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)
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AND INVESTMENT BANK
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)
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SIGNED by
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)
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/s/ Alexia Russell
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duly authorised
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)
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Attorney in fact
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for and on behalf of
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)
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SOCIÉTÉ GÉNÉRALE
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)
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AGENT
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SIGNED by
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)
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/s/ Alexia Russell
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duly authorised
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)
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Attorney in fact
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for and on behalf of
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)
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CRÉDIT AGRICOLE CORPORATE AND
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|
)
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INVESTMENT BANK
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)
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SACE AGENT
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SIGNED by
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)
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/s/ Alexia Russell
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duly authorised
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)
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Attorney in fact
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for and on behalf of
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)
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|
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CRÉDIT AGRICOLE CORPORATE AND
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)
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INVESTMENT BANK
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)
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Exhibit 10.4
Execution
Version
[*]: THE IDENTIFIED INFORMATION HAS
BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED
Dated 4 June
2020
AMENDMENT TO TERM LOAN FACILITY
MARINA NEW
BUILD, LLC
as Borrower
and
NCL CORPORATION LTD.
as Guarantor
and
OCEANIA CRUISES S. DE R.L.
as Charterer
and Shareholder
and
The Banks
and Financial Institutions
LISTED IN SCHEDULE 1
as Lenders
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
SOCIÉTÉ GÉNÉRALE
as Mandated Lead Arrangers
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
as Agent
and SACE Agent
SUPPLEMENTAL
AGREEMENT
relating
to a facility agreement originally dated 18 July 2008 (as amended by a supplemental agreement dated 25 October 2010 and as
amended and restated by an amendment and restatement agreement dated 31 October 2014) in respect of the part financing of the
passenger cruise ship m.v.
"MARINA"
Index
|
Clause
|
|
Page
|
|
|
|
|
|
1
|
Definitions and Interpretation
|
1
|
|
2
|
Conditions Precedent and Conditions Subsequent
|
3
|
|
3
|
Representations
|
4
|
|
4
|
Acknowledgment and Acceptance of the Principles
|
5
|
|
5
|
Amendments to Facility Agreement and other Finance Documents
|
5
|
|
6
|
New Covenants
|
22
|
|
7
|
Further Assurance
|
25
|
|
8
|
Costs and Expenses
|
26
|
|
9
|
Notices
|
26
|
|
10
|
Counterparts
|
26
|
|
11
|
Signing Electronically
|
26
|
|
12
|
Governing Law
|
26
|
|
13
|
Enforcement
|
26
|
Schedules
|
Schedule 1 Lenders and Commitments
|
28
|
|
Schedule 2 Conditions Precedent
|
29
|
|
Schedule 3 Repayment Schedule
|
31
|
|
Schedule 4 Information Package
|
32
|
|
Schedule 5 Form of Effective Date Certificate
|
33
|
Execution
THIS
AGREEMENT is made on 4 June 2020
Parties
|
(1)
|
MARINA NEW BUILD, LLC, a limited liability company formed in the Marshall Islands whose
registered address is at c/o The Trust Company of the Marshall Islands Inc., Trust Company Complex, Ajeltake Island, Majuro MH
96960, Republic of the Marshall Islands as borrower (the "Borrower")
|
|
(2)
|
NCL CORPORATION LTD., an exempted company incorporated under the laws of Bermuda with its
registered office at Cumberland House, 9th Floor, 1 Victoria Street, Hamilton HM11, Bermuda (the "Guarantor")
|
|
(3)
|
OCEANIA CRUISES S. DE R.L., a Panamanian limited liability
company (sociedad de responsabilidad limitada) organised and existing under the laws of the Republic of Panama, having its
office in the Republic of Panama with its Resident Agent being Arias Fabrega with address at Arifa Building, West Boulevard, Santa
Maria Business District, Panama, Republic of Panama and registered at the Mercantile Section of the Panama Public Registry at Microjacket
No. 423671, Document 396130 since 3 October 2002 (the "Charterer" and "Shareholder")
|
|
(4)
|
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Lenders and Commitments) as lenders
(the "Lenders")
|
|
(5)
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France and SOCIÉTÉ GÉNÉRALE
a French société anonyme having its registered office located at 29 Boulevard Haussmann, 75009 Paris under number
Siren 552 120 222 at the Registre du Commerce et des Sociétés of Paris, France as mandated lead arrangers (the "Mandated
Lead Arrangers")
|
|
(6)
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as agent and SACE agent (the "Agent"
and the "SACE Agent")
|
Background
|
(A)
|
By the Facility Agreement, the Lenders agreed to make available to the Borrower a facility of originally
the Dollar Equivalent of up to EUR 349,520,718 for the purpose of assisting the Borrower in financing (i) payment under the Shipbuilding
Contract of all or part of 80% of the Final Contract Price up to the Eligible Amount and (ii) payment to SACE of the Dollar Equivalent
of 100% of the second instalment of the SACE Premium payable on the original Drawdown Date.
|
|
(B)
|
Due to the unprecedented and extraordinary impacts of the Covid-19 pandemic on the cruise sector
and cruise operators, SACE S.p.A. has informed the cruise operators of its availability to evaluate certain measures (the "Temporary
Measures") applicable in relation to certain qualifying loan agreements in order to assist companies which
are financially sound but dealing with the impact of the temporary but unprecedented Covid-19 pandemic; the possibility to access
to such measures is subject, amongst other things, to certain principles dated 15 April 2020 for cruise lines offered by SACE (as
further defined below, the "Principles").
|
|
(C)
|
Pursuant to the consent request letter dated 18 April 2020, the Borrower and the Guarantor notified
the Agent and the SACE Agent of the wish to benefit from the Temporary Measures in relation to certain loan agreements listed therein,
including the Facility Agreement, and requested, amongst other things, the deferral of repayments of principal under the Facility
Agreement for a period of one year from 1 April 2020 to 31 March 2021 (the "Borrower Request").
|
|
(D)
|
On 25 May 2020, the Agent (for and on behalf of the Lenders)
and SACE provided their consent to part of the Borrower Request in accordance with and subject to certain conditions as set out
in this supplemental agreement (the "Agreement").
|
|
(E)
|
The Parties have agreed to enter into this Agreement for the purposes of, inter alia, documenting
the required amendments identified in the Principles.
|
Operative
Provisions
|
1
|
Definitions and Interpretation
|
In this Agreement:
"2020
Deferral Fee Letters" means any letter between the Agent
and any Obligor which sets out the fees payable in connection with the arrangements contemplated by this Agreement.
"2020
Deferral Prepayment Event" means the occurrence of any event entitling the Agent to exercise any rights granted to it
pursuant to Clause 6.5 (Breach of new covenants or the Principles) of this Agreement, including, without limitation, the
ability to cancel any part, or demand the immediate repayment of, the 2020 Deferral Tranche and to terminate the waiver of the
financial covenants granted pursuant to clause 11.15 of the Guarantee as amended by this Agreement.
"2020
Deferral Final Repayment Date" means the Repayment Date falling 3 years and six months after the 2020 Deferral Repayment
Starting Point, or, if earlier, the date on which the 2020 Deferral Tranche has been repaid or prepaid in full.
"2020
Deferral Repayment Starting Point" means
the date of the first Repayment Date falling after 31 March 2021, namely 19 July 2021.
"2020
Deferral Tranche" means the part of the Loan made or to be made available (or deemed made or to be deemed to be made available)
to the Borrower to finance the aggregate of the 2020 Deferred Repayment Instalments and the related premium payable to SACE (amounting
to [*] per cent. ([*]%) of the Total Commitments as of 1 April 2020) in a principal amount not
exceeding forty-five million, five hundred and forty-seven thousand, nine hundred and fifty-six Dollars and sixty-eight Cents ($45,547,956.68).
"2020
Deferred Repayment Instalments" means the repayment instalments in principal due during the Deferral Period as set out
pursuant to Schedule 3 (Repayment schedule).
"2020
Finance Documents" means this Agreement, each Supplemental Security Document and each 2020 Deferral Fee Letter.
"Amended
Facility Agreement" means the Facility Agreement as amended and supplemented by this Agreement.
"Deferral
Period" means the period from 1 April 2020 to 31 March 2021.
"Effective
Date" means the date on which the Agent notifies the Borrower, the other Creditor Parties and SACE as to the satisfaction
of the conditions precedent as provided in Clause 2.1(a).
"Facility
Agreement" means the facility agreement dated 18 July 2008 (as amended from time to time, including pursuant to
a supplemental agreement dated 25 October 2010 and an amendment and restatement agreement dated 31 October 2014) and made between,
amongst others, (i) the Borrower, (ii) the Lenders, (iii) the Mandated Lead Arrangers and (iv) the Agent and the SACE Agent.
"Information
Package" means the information package in connection with the "Debt Holiday" application in the form
set out in Schedule 4 (Information Package) to this Agreement, submitted, or to be submitted (as the case may be), by the
Borrower (or the Guarantor on its behalf) in order to obtain the benefit of the measures provided for in the Principles for the
purpose of the Facility Agreement (as amended) and certain of the Borrower’s and the Guarantor’s obligations under
the Facility Agreement.
"Mortgage
Addendum" means the addendum to the Mortgage in the agreed form.
"Obligors"
means the Borrower, the Guarantor, the Charterer and the Shareholder.
"Party"
means a party to this Agreement.
"Principles"
means the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April
2020, which sets out certain key principles and parameters relating to the qualifying Loan Agreements (as defined therein) and
being applicable to SACE-covered loan agreements such as the Facility Agreement.
"SACE"
means SACE S.p.A., an Italian joint stock company (società per azioni) with a sole shareholder, whose registered
office is located at Piazza Poli 37/42, 00187 Rome, Italy and registered with the Companies Registry of Rome under number 05804521002.
"Supplemental
Security Document" means each of:
|
|
(i)
|
the Supplemental Tripartite General Assignment; and
|
|
|
(ii)
|
the Mortgage Addendum.
|
"Supplemental
Tripartite General Assignment" means a second priority assignment, supplemental to the Tripartite General Assignment,
dated on or about the date of this Agreement and made between the parties to the Tripartite General Assignment.
"Tripartite
General Assignment" means the tripartite general assignment dated 19 January 2011 and entered into between the
Borrower, the Charterer, the Lenders and the Agent.
Defined expressions in the
Facility Agreement and, with effect from the Effective Date, the Amended Facility Agreement, shall have the same meanings when
used in this Agreement unless the context otherwise requires or unless otherwise defined in this Agreement.
|
1.3
|
Application of construction and interpretation provisions of Facility Agreement
|
Clause 1.2 (construction
of certain terms) of the Facility Agreement applies to this Agreement as if it were expressly incorporated in it with any necessary
modifications.
|
1.4
|
Agreed forms of new, and supplements to, Finance Documents
|
References in Clause 1.1 (Definitions)
to any new or supplement to a Finance Document being in "agreed form" are to that Finance Document:
|
(a)
|
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower
and the Agent); or
|
|
(b)
|
in any other form agreed in writing between the Borrower, the Agent and the Lenders acting with
the authorisation of the Majority Lenders.
|
|
1.5
|
Designation as a Finance Document
|
The Borrower and the Agent
designate this Agreement as a Finance Document.
|
(a)
|
Unless provided to the contrary in a Finance Document, a person who is not a Party has no right
under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the
benefit of any term of this Agreement other than SACE, who may enforce or to enjoy the benefit of and rely on the provisions of
this Agreement and the Amended Facility Agreement subject to the provisions of the Third Parties Act.
|
|
(b)
|
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party
(other than SACE) is not required to rescind or vary this Agreement at any time.
|
|
(c)
|
For the avoidance of doubt and in accordance with clause 33.4 (Third party rights) of the
Facility Agreement, nothing in this Clause 1.6 (Third party rights) shall limit or prejudice the exercise by SACE of its
rights under this Agreement or the Finance Documents in the event that such rights are subrogated or assigned to it pursuant to
the terms of the SACE Insurance Policy.
|
|
2
|
Conditions Precedent and Conditions Subsequent
|
|
2.1
|
The Effective Date cannot occur unless:
|
|
(a)
|
the Agent has received (or on the instructions of all the Lenders,
waived receipt of) all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and
substance satisfactory to the Agent;
|
|
(b)
|
save as disclosed in writing to the Agent and SACE prior to the
date of this Agreement, the representations and warranties contained in Clause 3 (Representations) are true and correct
on, and as of, each such time as if each was made with respect to the facts and circumstances existing at such time;
|
|
(c)
|
save as disclosed in writing to the Agent and SACE prior to the
date of this Agreement, no Event of Default, event or circumstance specified in clause 18 (Events of Default) which would
(with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination
of any of the foregoing) be an Event of Default, event resulting in mandatory prepayment of the Loan pursuant to clause 16.3 (Mandatory
prepayment) of the Facility Agreement or 2020 Deferral Prepayment Event shall have occurred and be continuing or would result
from the amendment of the Facility Agreement pursuant to this Agreement; and
|
|
(d)
|
the Agent is satisfied that the Effective Date can occur and have
not provided any instructions to the contrary informing the Parties that the Effective Date cannot occur.
|
|
2.2
|
Upon fulfilment or waiver of the conditions set out in Clause 2.1 above, the Agent shall provide
the Borrower and the Lenders with a copy of the executed certificate in the form set out in Schedule 5 (Form of Effective Date
Certificate) confirming that the Effective Date has occurred and such certificate shall be binding on all Parties.
|
|
2.3
|
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary
before the Agent provides the certificate described in Clause 2.2 above, the Creditor Parties authorise (but do not require) the
Agent to execute and provide such certificate. The Agent shall not be liable for any damages, costs or losses whatsoever as a result
of giving any such certificate.
|
|
2.4
|
On the Effective Date, the Borrower shall ensure that any notice
of assignment in respect of Insurances under the Supplemental Tripartite General Assignment is given to the relevant broker or
insurer and that it obtains a letter of undertaking from each relevant broker that it has endorsed the notice of assignment on
each policy.
|
|
3.1
|
Facility Agreement representations
|
On the date of this Agreement
and on the Effective Date, each Obligor that is a party to the Facility Agreement makes each of the representations and warranties
as set out in clause 12 (representations and warranties) of the Facility Agreement as amended and supplemented by this Agreement
and updated with appropriate modifications to refer to the 2020 Finance Documents and where appropriate, any Supplemental Security
Document.
|
3.2
|
Finance Document representations
|
Each Obligor makes the representations
and warranties set out in the Finance Documents (other than the Facility Agreement) to which it is a party, as amended and supplemented
by this Agreement and updated with appropriate modifications to refer to this Agreement and, where appropriate, any Supplemental
Security Document, by reference to the circumstances then existing on the date of this Agreement.
|
4
|
Acknowledgment and Acceptance of the Principles
|
Each
Obligor confirms its acknowledgment to the Principles and full acceptance of all terms, requirements and conditions thereunder.
|
5
|
Amendments to Facility Agreement and other Finance Documents
|
|
5.1
|
Specific amendments to the Facility Agreement
|
With effect on and from the
Effective Date the Facility Agreement shall be, and shall be deemed by this Agreement to be, amended as follows, so that, inter
alia, the principal amount of the Loan will not be increased (save for the premium to be advanced in accordance with Clause
5.1(e) below) but the repayment terms of, and the interest rate applicable to the relevant part of the Loan will be changed to
reflect the repayment profile and interest terms for the 2020 Deferral Tranche on the basis set out in this Agreement:
|
(a)
|
In clause 1.1 (Definitions) of the Facility Agreement, the following definitions shall be
added in alphabetical order:
|
|
|
(i)
|
"2020 Amendment Agreement" means the amendment to this Agreement dated 4
June 2020 between, amongst others, the Borrower, the Agent and the SACE Agent.
|
|
|
(ii)
|
"2020 Deferral Commitment" means in relation to
any Lender listed in Schedule 1 to the 2020 Amendment Agreement, the amount in Dollars expressed as a percentage set opposite its
name under the heading "Commitment" and the amount of any other commitment attributable to it (including the related
premium payable to SACE) under this Agreement in respect of the 2020 Deferral Tranche.
|
|
|
(iii)
|
"2020 Deferral Effective Date" has the meaning given to the term Effective Date
in the 2020 Amendment Agreement.
|
|
|
(iv)
|
"2020 Deferral Fee Letters"
means any letter between the Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated
by the 2020 Amendment Agreement.
|
|
|
(v)
|
"2020 Deferral Final Repayment Date" means the Repayment Date falling 3 years and six
months after the 2020 Deferral Repayment Starting Point, or, if earlier, the date on which the 2020 Deferral Tranche has been repaid
or prepaid in full.
|
|
|
(vi)
|
"2020 Deferral Prepayment Event" means the occurrence of any event entitling the
Agent to exercise any rights granted to it pursuant to Clause 6.5 (Breach of new covenants or the Principles) of the 2020
Amendment Agreement, including, without limitation, the ability to cancel any part, or demand the immediate repayment of, the 2020
Deferral Tranche and to terminate the waiver of the financial covenants granted pursuant to clause 11.15 of the Guarantee as amended
by the 2020 Amendment Agreement.
|
|
|
(vii)
|
"2020 Deferral Repayment
Starting Point" means the date of the first Repayment Date falling after 31 March 2021, namely 19
July 2021.
|
|
|
(viii)
|
"2020 Deferral Tranche" means the part of the
Loan made or to be made available to the Borrower to finance the aggregate of the 2020 Deferred Repayment Instalments and the related
premium payable to SACE (amounting to [*] per cent. ([*]%) of the Total Commitments as of 1 April 2020) in a principal amount not
exceeding forty-five million, five hundred and forty-seven thousand, nine hundred and fifty-six Dollars and sixty-eight Cents ($45,547,956.68).
|
|
|
(ix)
|
"2020 Deferred Repayment Instalments" means the repayment instalments due during
the Deferral Period as set out pursuant to Schedule 3 (Repayment schedule).
|
|
|
(x)
|
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework
for the recovery and resolution of credit institutions and investment firms.
|
|
|
(xi)
|
"Bail-In Action"
means the exercise of any Write-down and Conversion Powers.
|
|
|
(xii)
|
"Bail-In Legislation"
means:
|
|
|
(i)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article
55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
|
|
(ii)
|
in relation to any state other than such an EEA Member Country or (to the extent that the United
Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires
contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
|
|
|
(xiii)
|
"Deferred Costs Percentage" means 0.80% p.a.
|
|
|
(xiv)
|
"Deferral Period" means the period from 1 April 2020 to 31 March 2021.
|
|
|
(xv)
|
"Deferral Repayment Date" has the meaning given to such term in Clause 5.5 (Repayment
of 2020 Deferral Tranche).
|
|
|
(xvi)
|
"Deferral Repayment Instalments" has the meaning given to such term in Clause
5.5 (Repayment of 2020 Deferral Tranche).
|
|
|
(xvii)
|
"EEA Member Country"
means any member state of the European Union, Iceland, Liechtenstein and Norway.
|
|
|
(xviii)
|
"EU Bail-In Legislation Schedule"
means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
|
|
|
(xix)
|
"Funding Rate"
means any individual rate notified by a Lender to the Agent pursuant to sub-paragraph (i) of paragraph (e) of Clause 6.10 (Cost
of funds).
|
|
|
(xx)
|
"Interpolated Screen Rate"
means, in relation to the Loan or any part of the Loan, the rate which results from interpolating on a linear basis between:
|
|
|
(i)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which
is less than the Interest Period of the Loan or that part of the Loan; and
|
|
|
(ii)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which
exceeds the Interest Period of the Loan or that part of the Loan,
|
each as
of the Specified Time for Dollars.
|
|
(xxi)
|
"Principles"
means the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April 2020, which sets out certain
key principles and parameters relating to the qualifying Loan Agreements (as defined therein) and being applicable to SACE-covered
loan agreements such as this Agreement.
|
|
|
(xxii)
|
"Reference Bank Rate"
means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the
Reference Banks:
|
|
|
(A)
|
the Reference Bank is a contributor to the Screen Rate; and
|
|
|
(B)
|
it consists of a single figure,
|
as the rate
(applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to
submit to the relevant administrator; or
|
|
(ii)
|
in any other case, as the rate at which the relevant Reference Bank could fund itself in Dollars
for the relevant period with reference to the unsecured wholesale funding market.
|
|
|
(xxiii)
|
"Reference Bank Quotation" means any quotation supplied to the Agent by a Reference
Bank.
|
|
|
(xxiv)
|
"Reference Banks"
means such entities as may be appointed by the Agent in consultation with the Borrower.
|
|
|
(xxv)
|
"Relevant Interbank Market"
means the London interbank market.
|
|
|
(xxvi)
|
"Relevant Nominating Body" means any applicable central bank, regulator or other
supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request
of, any of them or the Financial Stability Board.
|
|
|
(xxvii)
|
"Replacement Benchmark" means a benchmark rate which is:
|
|
|
(i)
|
formally designated, nominated or recommended as the replacement for a Screen Rate by:
|
|
|
(A)
|
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark
rate measures is the same as that measured by that Screen Rate); or
|
|
|
(B)
|
any Relevant Nominating Body,
|
and if replacements
have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Benchmark"
will be the replacement under paragraph (B) above;
|
|
(ii)
|
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international
or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
|
|
|
(iii)
|
in the opinion of the Majority Lenders and the Borrower, an appropriate successor to a Screen Rate.
|
|
|
(xxviii)
|
"Resolution Authority"
means any body which has authority to exercise any Write-down and Conversion Powers.
|
|
|
(xxix)
|
"Screen Rate"
means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over
the administration of that rate) for Dollars for the relevant period displayed (before any correction, recalculation or republication
by the administrator) on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that
rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson
Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant
rate after consultation with the Borrower.
|
|
|
(xxx)
|
"Screen Rate Contingency Period"
means fifteen (15) Business Days.
|
|
|
(xxxi)
|
"Screen Rate Replacement Event"
means, in relation to a Screen Rate:
|
|
|
(i)
|
the methodology, formula or other means of determining that Screen Rate has, in the opinion of
the Majority Lenders and the Borrower materially changed;
|
|
|
(1)
|
the administrator of that Screen Rate or its supervisor publicly announces that such administrator
is insolvent; or
|
|
|
(2)
|
information is published in any order, decree, notice, petition or filing, however described, or
filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of that Screen Rate is insolvent,
|
provided
that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
|
(B)
|
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide
that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that
Screen Rate;
|
|
|
(C)
|
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate
has been or will be permanently or indefinitely discontinued; or
|
|
|
(D)
|
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no
longer be used; or
|
|
|
(iii)
|
the administrator of that Screen Rate determines that that Screen Rate should be calculated in
accordance with its reduced submissions or other contingency or fallback policies or arrangements and either:
|
|
|
(A)
|
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority
Lenders and the Borrower) temporary; or
|
|
|
(B)
|
that Screen Rate is calculated in accordance with any such policy or arrangement for a period no
less than the Screen Rate Contingency Period; or
|
|
|
(iv)
|
in the opinion of the Majority Lenders and the Borrower, that Screen Rate is otherwise no longer
appropriate for the purposes of calculating interest under this Agreement.
|
|
|
(xxxii)
|
"Specified Time"
means a day or time determined in accordance with the following:
|
|
|
(i)
|
if LIBOR is fixed, the Quotation Day as of 11:00 am London time; and
|
|
|
(ii)
|
in relation to a Reference Bank Rate calculated by reference to the available quotations in accordance
with Clause 6.8 (Calculation of Reference Bank Rate), noon on the Quotation Day.
|
|
|
(xxxiii)
|
"Supplemental Security Document" means each of:
|
|
|
(i)
|
the Supplemental Tripartite General Assignment; and
|
|
|
(ii)
|
the Mortgage Addendum.
|
|
|
(xxxiv)
|
"Supplemental Tripartite General
Assignment" means a second priority assignment, supplemental to the Tripartite General Assignment, dated on or
about the date of the 2020 Amendment Agreement and made between the Borrower, the Charterer the Lenders and the Agent.
|
|
|
(xxxv)
|
"Tripartite General Assignment"
means the tripartite general assignment dated 19 January 2011 and entered into between the Borrower, the Charterer, the Lenders
and the Agent.
|
|
|
(xxxvi)
|
"UK Bail-In Legislation" means (to the extent that the United Kingdom is not an
EEA Member Country which has implemented, or implements, Article 55 BRRD) Part 1 of the United Kingdom Banking Act 2009 and any
other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms
or other financial institutes or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
|
|
|
(xxxvii)
|
"Write-down and Conversion Powers"
means:
|
|
|
(i)
|
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time
to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
|
|
|
(ii)
|
in relation to any other applicable Bail-In Legislation:
|
|
|
(A)
|
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those
powers; and
|
|
|
(B)
|
any similar or analogous powers under that Bail-In Legislation; and
|
|
|
(iii)
|
in relation to any UK Bail-In Legislation:
|
|
|
(A)
|
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of
those powers; and
|
|
|
(B)
|
any similar or analogous powers under that UK Bail-In Legislation.
|
|
(b)
|
In clause 1.1 (Definitions) of the Facility Agreement, the following definitions shall be
amended as follows:
|
|
|
(i)
|
the definition of "Commitment" shall be amended by adding the following wording after
the wording "set opposite its name in Schedule 1":
|
"(including,
in relation to a Lender, its 2020 Deferral Commitment)";
|
|
(ii)
|
the definition of "Finance Documents" shall be amended by adding the 2020 Amendment Agreement,
the 2020 Deferral Fee Letters and the Supplemental Security Documents as Finance Documents;
|
|
|
(iii)
|
the definition of "General Assignment" shall be deleted and replaced as follows:
|
“"General
Assignment" means the Tripartite General Assignment, as supplemented by the Supplemental Tripartite General Assignment.”
|
|
(iv)
|
the definition of "LIBOR" shall be deleted and replaced as follows:
|
"LIBOR"
means, in relation to the Loan or any part of the Loan:
(A) the
applicable Screen Rate as of the Specified Time for Dollars and for a period equal in length to the Interest Period of the Loan
or that part of the Loan; or
(B) as otherwise
determined pursuant to Clause 6.7 (Unavailability of Screen Rate).
and if, in
either case, that rate is less than zero, LIBOR shall be deemed to be zero;"
|
|
(v)
|
the definition of "Loan" shall be deleted and replaced as follows:
|
""Loan"
means the loan made or to be made under this Agreement (including under the 2020 Deferral Tranche) or the principal amount outstanding
for the time being of that loan ";
|
|
(vi)
|
the definition of "Maximum Loan Amount" shall be deleted and replaced as follows:
|
"Maximum
Loan Amount" means the aggregate of (a) the Dollar Equivalent of Euro 334,590,328.80; and (b) 100% of the second instalment
of the SACE Premium payable on the original Drawdown Date, with (X) the Loan currently outstanding on the 2020 Deferral Effective
Date being equal to $133,933,645.33 and (Y) an amount equal to $45,547,956.68 (under the 2020 Deferral
Tranche) being available for utilisation,
(and
which for this purpose includes the aggregate amount of the 2020 Deferral Tranche (including the related premium payable to SACE
to be financed thereunder)) to be made (or deemed to be made) available as provided for in this Agreement";
|
|
(vii)
|
the definition of "Overnight LIBOR" shall be deleted and replaced as follows:
|
"Overnight
LIBOR" means, in relation to the Loan or any part of the
Loan:
|
|
(A)
|
on any date, the applicable day to day Screen Rate as of the Specified Time for Dollars; or
|
|
|
(B)
|
as otherwise determined pursuant to Clause 6.7 (Unavailability of Screen Rate),
|
and if, in
either case, that rate is less than zero, Overnight LIBOR shall be deemed to be zero; and
|
|
(viii)
|
the definition of "Quotation Date" shall be deleted and
replaced as follows:
|
"Quotation
Day" means in relation to any period for which an interest rate is to be determined, two Business Days before the
first day of that period unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will be
determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be
given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
and all
references to "Quotation Date" shall be replaced with references to "Quotation Day".
|
(c)
|
Clause 3.1 (General) shall be amended by inserting a new final sentence as follows:
|
"This
Clause 3 (Conditions Precedent) shall not apply to the 2020 Deferral Tranche, save for Clause 3.10."
|
(d)
|
A new clause 3.10 shall be inserted as follows:
|
"The
relevant part of the 2020 Deferral Tranche shall only be advanced if the Agent shall have received
(a) no later than five (5) Business Days before the date of the relevant advance (and only if required under Clause 4.9 hereunder),
a Drawdown Notice from the Borrower, signed by a duly authorised signatory of the Borrower, specifying the amount of the 2020 Deferral
Tranche to be drawn down, and (b) on the relevant date of the relevant advance or deemed advance (as applicable):
|
|
(i)
|
save as disclosed in writing to the Agent and SACE prior to the
date of the 2020 Amendment Agreement, no Event of Default is continuing or would result from such advance or deemed advance (as
applicable) and no 2020 Deferral Prepayment Event or event or circumstance specified in clause 18 (Events of Default) which
would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or
any combination of any of the foregoing) be an Event of Default has occurred; and
|
|
|
(ii)
|
save as disclosed in writing to the Agent and SACE prior to the
date of the 2020 Amendment Agreement, each of the repeating representations set out in Clause 12 (Representations and warranties)
are true as at such date by reference to the facts and circumstances existing at such date."
|
|
(e)
|
The drawdown mechanics of the Facility Agreement shall be amended to allow for drawdown of the
2020 Deferral Tranche as follows:
|
|
|
(i)
|
The following new clause 4.9 shall be added:
|
“4.9
2020 Deferral Tranche. Pursuant to the 2020 Amendment Agreement, the Lenders have agreed (but without increasing the Maximum
Loan Amount and the Total Commitments of each Lender save for the related premium to be advanced in accordance with paragraph (B)
below) to make available to the Borrower the 2020 Deferral Tranche as follows:
|
|
(A)
|
on each Repayment Date during the Deferral Period, a portion of the 2020 Deferral Tranche in an
amount equal to the relevant 2020 Deferred Repayment Instalment due on such Repayment Date shall be automatically drawn by the
Borrower and applied towards repayment of the relevant 2020 Deferred Repayment Instalment due on such date. Each such advance under
the 2020 Deferral Tranche shall be automatic and notional only, and effected by means of a book entry to finance the 2020 Deferred
Instalments then due; and
|
|
|
(B)
|
together with the first advance under this Clause 4.9 (2020 Deferral Tranche), a portion
of the 2020 Deferral Tranche in an amount equal to the amount to be paid to SACE in respect of the premium payable to SACE due
on the first advance under the 2020 Deferral Tranche shall be drawn by the Borrower and paid to SACE as specified in the relevant
Drawdown Notice.
|
Accordingly,
the other provisions of this Clause 4 shall not apply to the advance of the 2020 Deferral Tranche
and each advance of the 2020 Deferral Tranche under this Clause 4.9 (2020 Deferral Tranche) (A) shall be deemed to satisfy
the Borrower’s obligations under Clause 5 (Repayment) in respect of the corresponding 2020 Deferred Repayment Instalment.”,
and clause
2.3 (Purpose of Loan) and clause 4.4 (Availability) of the Facility Agreement shall be deemed amended and supplemented
accordingly by this Agreement.
|
(f)
|
The repayment provisions of the Facility Agreement shall be amended to provide for the repayment
of the 2020 Deferral Tranche as follows:
|
|
|
(i)
|
In Clause 5.1, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “The Borrower”;
|
|
|
(ii)
|
In Clause 5.2, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “The first instalment”;
|
|
|
(iii)
|
In Clause 5.3, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “Each of the”;
|
|
|
(iv)
|
In Clause 5.4, the words “Subject to Clause 5.5 (Repayment of 2020 Deferral Tranche),”
shall be added before “On the final Repayment Date”;
|
|
|
(v)
|
A new paragraph 5.5 to the Facility Agreement shall be added as follows:
|
“5.5
Repayment of 2020 Deferral Tranche. Subject to Clause 4.9 (2020 Deferral Tranche), the 2020 Deferral Tranche shall be
repaid in eight semi-annual instalments beginning on the 2020 Deferral Repayment Starting Point and until the 2020 Deferral Final
Repayment Date as set out below. Each such instalment shall be a “Deferral Repayment Instalment” and each date
on which a Deferral Repayment Instalment is payable shall be a “Deferral Repayment Date”.”
|
(g)
|
The voluntary prepayment provisions of the Facility Agreement shall be amended by adding to the
end of clause 16.2 (Voluntary prepayment) the following paragraph:
|
“Any
voluntary prepayment shall be made in accordance with the provisions of this Clause 16.2 and applied against the outstanding repayment
instalments in the inverse order of their maturity, save that where there is an amount of the 2020 Deferral Tranche outstanding,
any such prepayment shall first be applied against such 2020 Deferral Tranche in the inverse order of maturity.”
|
|
(h)
|
The interest provisions of the Facility Agreement shall be amended:
|
|
|
(i)
|
to confirm that interest will accrue on the relevant part of the 2020 Deferral Tranche at a floating
rate, clause 6 (Interest) shall be amended by adding a new clause 6.3 as follows:
|
“6.3
Interest in respect of 2020 Deferral Tranche. The rate of interest for each Interest Period in respect of the 2020 Deferral
Tranche shall be the Floating Interest Rate.”; and
|
|
(ii)
|
to reflect the increased costs of the Lenders in connection with
the deferral arrangements contemplated by this Agreement and the 2020 Amendment Agreement, clause 6 (Interest) shall be
amended by adding a new clause 6.4 as follows:
|
“6.4
Deferred Costs. Independently to any other obligation to pay costs, expenses or interest under or in connection with this Agreement,
the Borrower shall, as a separate obligation, also pay to the Agent (for distribution to each Lender) deferred costs in respect
of any drawn portion of the 2020 Deferral Tranche at the Deferred Costs Percentage for each Interest Period during which any part
of the 2020 Deferral Tranche remains outstanding. Whilst not an interest liability, such deferred costs shall be charged from and
including the first day of the applicable Interest Period in which an amount of the 2020 Deferral Tranche is outstanding to (but
not including) the last day of such Interest Period, and will be payable semi-annually in arrears on each interest payment date.
Any deferred costs payable in accordance with this Clause 6.4 (Deferred Costs) shall be calculated on the basis of the actual
number of days elapsed over a year comprised of 360 days. Any non-payment of such deferred costs shall be an Event of Default in
accordance with Clause 18.2 (Non-payment).”,
and, for the
avoidance of doubt, interest due during the Deferral Period and as contemplated in the Facility Agreement will continue to be paid
and the remaining clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(i)
|
Clauses 6.5 (Market disruption) to clause 6.10 (Alternative rate of interest in absence
of agreement) inclusive of the Facility Agreement shall be deleted and replaced by the following provisions:
|
“6.7
Unavailability of Screen Rate
|
|
(a)
|
Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period
of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to
the Interest Period of the Loan or that part of the Loan.
|
|
|
(b)
|
Reference Bank Rate: If no Screen Rate is available for LIBOR for:
|
|
|
(ii)
|
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the
Interpolated Screen Rate,
|
|
|
(iii)
|
the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time and for a period
equal in length to the Interest Period of the Loan or that part of the Loan.
|
|
|
(c)
|
Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for
Dollars or the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause
6.10 (Cost of funds) shall apply to the Loan or that part of the Loan for that Interest
Period.
|
6.8 Calculation
of Reference Bank Rate
|
|
(a)
|
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate
but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis
of the quotations of the remaining Reference Banks.
|
|
|
(b)
|
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation,
there shall be no Reference Bank Rate for the relevant Interest Period.
|
6.9 Market
Disruption
If before
close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notification from a Lender
or Lenders (whose participations in the Loan or the relevant part of the Loan in aggregate exceed 50 per cent. of the Loan or the
relevant part of the Loan as appropriate) that the cost to it or each of them of funding its participation in the Loan or that
part of the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 6.10 (Cost of funds)
shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
6.10 Cost
of funds
|
|
(a)
|
If this Clause 6.10 (Cost of funds) applies, the rate of interest on the Loan or the relevant
part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
|
|
(ii)
|
the weighted average of the rates notified to the Agent by each Lender as soon as practicable and
in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate
per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source
it may reasonably select.
|
|
|
(b)
|
If this Clause 6.10 (Cost of funds) applies and the Agent or the Borrower so requires, the
Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute
basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
|
|
(c)
|
Subject to Clause 6.11 (Replacement of Screen Rate), any
substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the
Borrower, be binding on all Parties.
|
|
|
(d)
|
If paragraph (e) below does not apply and any rate notified to the Agent under sub-paragraph (ii)
of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
|
|
(e)
|
If this Clause 6.10 (Cost of funds) applies pursuant to Clause 6.9 (Market disruption)
and:
|
|
|
(i)
|
a Lender's Funding Rate is less than LIBOR; or
|
|
|
(ii)
|
a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph
(a) above,
|
the cost to
that Lender of funding its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed,
for the purposes of paragraph (a) above, to be LIBOR.
|
|
(f)
|
If this Clause 6.10 (Cost of funds) applies but any Lender does not supply a quotation by
the time specified in sub-paragraph (ii) of paragraph (a) above, the rate of interest shall be calculated on the basis of the quotations
of the remaining Lenders.
|
6.11 Replacement
of Screen Rate
If a Screen
Rate Replacement Event has occurred in relation to the Screen Rate for Dollars, any amendment or waiver which relates to:
|
|
(i)
|
providing for the use of a Replacement Benchmark; and
|
|
|
(A)
|
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
|
|
(B)
|
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement
(including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes
of this Agreement);
|
|
|
(C)
|
implementing market conventions applicable to that Replacement Benchmark;
|
|
|
(D)
|
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark;
or
|
|
|
(E)
|
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer
of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment
or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body,
the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
may be made
with the consent of the Agent (acting on the instructions of the Majority Lenders), SACE and SIMEST (if applicable) and the Borrower,
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(j)
|
The interest period mechanics of the Facility Agreement shall be updated to reflect the existence
of the 2020 Deferral Tranche as follows:
|
|
|
(i)
|
in clause 7.1 (Floating interest rate), adding the words ‘or, in the case of the 2020
Deferral Tranche’ after the words ‘pursuant to Clause 3.5(b);
|
|
|
(ii)
|
adding a new clause 7.4 as follows:
|
“(c)
The first Interest Period in relation to each advance or deemed advance (as applicable) under the
2020 Deferral Tranche shall start on the date of such advance or deemed advance (as applicable) and end on the last day of the
current Interest Period in respect of the Loan, following which all Interest Periods will be consolidated”.
|
|
(k)
|
The provisions of clause 10.1(b) shall be amended by adding a new
clause 10.1(b)bis as follows:
|
“10.1(b)bis With
effect from the date of the 2020 Amendment Agreement, the Borrower shall pay to the Agent (for the account of the Lenders for application
pro rata to their Commitments) a commitment fee in the amount of [*] per cent. ([*]%) per
annum on the daily undrawn 2020 Deferral Commitment. The commitment fee shall be payable in arrears on the date of each advance
or deemed advance, as applicable, of the 2020 Deferral Tranche in accordance with Clause 4.9 or, if cancelled, on the date of cancellation
of the 2020 Deferral Tranche.”
|
|
(l)
|
Clause 13.2 (Information) shall be amended by deleting sub-clause
(b) and replacing it with the following wording:
|
“(b)
as soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter for the first three
quarters in any fiscal year and within 90 days for the final quarter) a copy of the unaudited consolidated quarterly management
accounts of the Guarantor (it being understood that the delivery by the Guarantor of quarterly or annual reports as filed with
the Securities and Exchange Commission in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements
of this paragraph (b))”.
|
|
(m)
|
Clause 18.4 (Breach of other obligations) shall be amended by adding a new sub-clause (c) as follows:
|
“(c)
any breach of any financial covenant contained in Clause 11.15 of the Guarantee arising on a testing date during the Deferral Period
shall not, subject to no (i) Event of Default under Clauses 18.7 (Winding-up) to Clause 18.13 (Cessation of business)
(inclusive) having occurred and being continuing or (ii) 2020 Deferral Prepayment Event having occurred, constitute an Event of
Default.”
|
|
(n)
|
A cross-default occurring solely due to a breach of financial covenants in respect of the Guarantee
and applying to the Group in another SACE-backed loan agreement to which the Principles apply shall not, subject to the terms of
the Amended Facility Agreement, result in an Event of Default and, accordingly, a new clause 18.6(e) shall be added as follows:
|
“(e)
No Event of Default will occur, or be deemed to have occurred, under this Clause 18.6 (Cross default) if such Event of Default
occurs during the Deferral Period (but without prejudice to the rights of the Lenders in respect of any further breach that may
occur following the expiry of the Deferral Period) and is caused solely as a result of a breach of financial covenants in respect
of the Group equivalent to those set out in clause 11.15 of the Guarantee, under, or in relation to, any other SACE-backed facility
agreement to which a Guarantor is a Party or has executed a Guarantee and to which the Principles apply, unless at the time of
such Event of Default, an event resulting in mandatory prepayment of the Loan pursuant to Clause 16.3 (Mandatory prepayment)
or a 2020 Deferral Payment Event has occurred.”
|
|
(o)
|
Clause 19.1 (Receipts) shall be amended by deleting sub-clause
(a) and replacing it with the following wording:
|
“(a) 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 17 (Interest on late payments), third, to interest payable pursuant to Clause
6 (Interest) and to any deferred costs payable pursuant to Clause 6.4 (Deferred Costs), fourth, to the principal
of the Loan payable pursuant to Clause 5 (Repayment), fifth, to any other sums due under this Agreement or any other Finance
Document and, if relevant, pro rata to each of the Lenders and sixth, to any sums due pursuant to Clause 20.2 (Breakage
costs); or”.
|
|
(p)
|
A new clause 33.7 (Bail-In) shall be added as follows:
|
33.7 Bail-In.
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the parties
to a Finance Document, each Party acknowledges and accepts that any liability of any party to a Finance Document under or in connection
with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to
be bound by the effect of:
|
|
(i)
|
any Bail-In Action in relation to any such liability, including (without limitation):
|
|
|
(A)
|
a reduction, in full or in part, in the principal amount, or outstanding amount due (including
any accrued but unpaid interest) in respect of any such liability;
|
|
|
(B)
|
a conversion of all, or part of, any such liability into shares or other instruments of ownership
that may be issued to, or conferred on, it; and
|
|
|
(C)
|
a cancellation of any such liability; and
|
|
|
(ii)
|
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In
Action in relation to any such liability,
|
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(q)
|
A new clause 34 (Confidentiality of funding rates and reference
bank quotations) shall be added as follows:
|
34 Confidentiality
of funding rates and reference bank quotations.
34.1 Confidentiality
and disclosure
|
|
(a)
|
The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and
(d) below.
|
|
|
(b)
|
The Agent may disclose:
|
|
|
(i)
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower
pursuant to Clause 6.6 (Notification of Interest Periods and Floating Interest Rate);
|
|
|
(ii)
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration
services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide
those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially
in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other
form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
|
|
|
(c)
|
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose
any Funding Rate, to:
|
|
|
(i)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers,
auditors, partners and representatives, if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant
to this sub-paragraph (i) is informed in writing of its confidential nature and that it may be price sensitive information except
that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
|
|
(ii)
|
any person to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is
to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable
to do so in the circumstances;
|
|
|
(iii)
|
any person to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding
Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive
information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as
the case may be, it is not practicable to do so in the circumstances; and
|
|
|
(iv)
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
|
|
(d)
|
The Agent’s obligations in this Clause 34 (Confidentiality of Funding Rates and Reference
Bank Quotations) relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under
Clause 6.6 (Notification of Interest Periods and Floating Interest Rate) provided that (other than pursuant to sub-paragraph
(i) of paragraph (b) above) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such
notification.
|
34.2 Related
obligations
|
|
(a)
|
The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not
to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
|
|
(b)
|
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the
relevant Lender or Reference Bank, as the case may be:
|
|
|
(i)
|
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of (c) of Clause 34.1
(Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph
during the ordinary course of its supervisory or regulatory function; and
|
|
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this Clause 34 (Confidentiality
of Funding Rates and Reference Bank Quotations).
|
34.3 No
Event of Default
No Event
of Default will occur under Clause 18.4 (Breach of other obligations) by reason only of an Obligor’s failure to comply
with this Clause 34 (Confidentiality of Funding Rates and Reference Bank Quotations).
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
5.2
|
Specific Amendments to Guarantee
|
With effect on and from the
Effective Date, Clause 11.3 (Provision of financial statements) of the Guarantee shall be, and shall be deemed by this Agreement
to be amended as follows:
|
|
(a)
|
deleting sub-clause (d) and replacing it with the following wording:
|
“(d) as
soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter in respect of the first
three quarters of each fiscal year and 90 days in respect of the final quarter) a copy of the unaudited consolidated quarterly
management accounts of the Guarantor certified as to their correctness by the chief financial officer of the Guarantor (it being
understood that the delivery by the Guarantor of quarterly or annual reports as filed with the Securities and Exchange Commission
in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements of this paragraph (d))”;
|
|
(b)
|
deleting sub-clause (g)(i); and
|
|
|
(c)
|
deleting sub-clause (g)(ii)(x),
|
and, for
the avoidance of doubt, subject to the provisions of Clause 5.5 (Borrower and Creditor Parties’ Confirmations and Waivers)
and Clause 6.5 (Breach of new covenants or the Principles), the financial covenants will continue to be tested and the reporting
obligations shall continue to apply in accordance with clause 11.3 (Provision of financial statements) of the Guarantee
(as amended and supplemented by this Agreement) in respect of the Deferral Period.
|
|
5.3
|
Guarantor confirmation
|
On the Effective Date the Guarantor
confirms that:
|
|
(a)
|
its Guarantee extends to the obligations of the Borrower under the Finance Documents as amended
and supplemented by this Agreement;
|
|
|
(b)
|
the obligations of the relevant Obligors under the Finance Documents as amended and supplemented
by this Agreement are included in the Secured Liabilities (as defined in the Facility Agreement); and
|
|
|
(c)
|
the Guarantee continues to have full force and effect in accordance with its terms as so extended.
|
|
|
5.4
|
Security confirmation
|
Without prejudice to the provisions
of any Supplemental Security Document, on the Effective Date, each Obligor confirms that:
|
|
(a)
|
any Security Interest created by it under the Finance Documents extends to the obligations of the
relevant Obligors under the Finance Documents as amended and supplemented by this Agreement;
|
|
|
(b)
|
the obligations of the relevant Obligors under the Finance Documents as amended and supplemented
by this Agreement are included in the Secured Liabilities (as defined in the Finance Documents to which it is a party);
|
|
|
(c)
|
the Security Interests created under the Finance Documents continue in full force and effect on
the terms of the respective Finance Documents; and
|
|
|
(d)
|
to the extent that this confirmation creates a new Security Interest, such Security Interest shall
be on the terms of the Finance Documents in respect of which this confirmation is given.
|
|
|
5.5
|
Borrower and Creditor Parties’ Confirmations and Waivers
|
|
|
(a)
|
Notwithstanding the amendments to the testing of the financial covenants contemplated by Clause
5.2, the Borrower and the Guarantor confirm that the reporting obligations under clause 11.3 (Provision of financial statements)
of the Guarantee (as amended and supplemented by this Agreement) in respect of such financial covenants shall continue to apply.
The Agent confirms that any breach of such financial covenants arising on a testing date during the Deferral Period by reference
to the financial position of the Group (on a consolidated basis), shall not (without prejudice to the rights of the Lenders in
respect of any further breach of such financial covenants that may occur following the expiry of the Deferral Period, and subject
further to no (a) Event of Default under Clauses 18.7 (Winding-up) to Clause 18.13 (Cessation of business) (inclusive)
of the Amended Facility Agreement having occurred and being continuing or (b) 2020 Deferral Prepayment
Event having occurred) result in an Event of Default.
|
|
|
(b)
|
For the avoidance of doubt, in addition to the other undertakings
the application of which have not been expressly suspended under this Agreement, the Borrower confirms that the undertaking pursuant
to clause 13.23(c) of the Facility Agreement shall continue to apply in order to permit an inspection of the Ship during the Deferral
Period as required by the Principles.
|
|
|
5.6
|
Finance Documents to remain in full force and effect
|
The Finance Documents shall
remain in full force and effect and, from the Effective Date:
|
|
(a)
|
shall be, and shall be deemed by this Agreement to be amended (where
relevant) to include a cross reference to clause 33.7 (Bail-in) of the Facility Agreement as amended by this Agreement;
|
|
|
(b)
|
in the case of the Facility Agreement, as amended and supplemented pursuant to Clause 5.1 (Specific
amendments to the Facility Agreement);
|
|
|
(c)
|
in the case of the Guarantee, as amended and supplemented pursuant to Clause 5.2 (Specific Amendments
to Guarantee);
|
|
|
(d)
|
the Facility Agreement and the applicable provisions of this Agreement will be read and construed
as one document;
|
|
|
(e)
|
the Guarantee and the applicable provisions of this Agreement will be read and construed as one
document; and
|
|
|
(f)
|
except to the extent expressly waived by the amendments effected
by this Agreement, no waiver is given by this Agreement and the Lenders expressly reserve all their rights and remedies in respect
of any breach of or other default under the Finance Documents,
|
and for the
avoidance of doubt, the provisions of the Finance Documents shall continue to apply, notwithstanding that the final repayment instalment
due under clause 5 (Repayment) of the Facility Agreement falls prior to the 2020 Deferral Final Repayment Date.
|
|
6.1
|
Payments under the Shipbuilding Contracts
|
Until the 2020 Deferral
Final Repayment Date:
|
|
(a)
|
the Guarantor shall and the Guarantor shall procure that any member of the Group that has entered
into a shipbuilding contract with a shipbuilder or enters into any such shipbuilding contract, in each case which is financed with
the support of SACE (the “Covered Shipbuilding Contracts”) shall continue to perform all of their respective
obligations as set out in any Covered Shipbuilding Contract (including without limitation the payment of any instalments due under
any Covered Shipbuilding Contract (as the same may have been amended prior to the 2020 Deferral Effective Date), and subject to
any amendment agreed pursuant to Clause 6.1(b) below). The Guarantor shall and the Guarantor shall procure that any member of the
Group shall promptly notify the Agent and SACE of any failure by it to comply with any due and owing obligations under a Covered
Shipbuilding Contract; and
|
|
|
(b)
|
the Guarantor shall and the Guarantor shall procure that any member of the Group further undertakes
to consult with the Agent and SACE in respect of any proposed amendment to a Covered Shipbuilding Contract insofar as any such
proposed amendment relates to a payment instalment or (save as expressly permitted by the relevant Amended Facility Agreement)
a delivery date or any other substantial amendment which may affect the related financing and to obtain the Agent and SACE’s
approval prior to executing any such amendment.
|
No Obligor
shall:
|
|
(a)
|
declare, make or pay any dividend or other distribution (or interest on any unpaid dividend or
other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);
|
|
|
(b)
|
repay or distribute any dividend or share premium reserve;
|
|
|
(c)
|
make any repayment of any kind under any shareholder loan; or
|
|
|
(d)
|
redeem, repurchase (whether by way of share buy-back program or otherwise), defease, retire or
repay any of its share capital or resolve to do so,
|
during the
period up to and including the 2020 Deferral Final Repayment Date, during the period up to and including the 2020 Deferral Final
Repayment Date, except that (i) any Obligor may pay dividends
and other distributions, directly or indirectly, to the Guarantor for the purpose of providing liquidity to the Guarantor to enable
the Guarantor to satisfy payment obligations for which the Guarantor is an obligor and (ii) any Obligor may pay
dividends in respect of the tax liability to each relevant jurisdiction in respect of consolidated,
combined, unitary or affiliated tax returns for each relevant jurisdiction of the Group or holder of the Guarantor’s capital
stock with respect to income taxable as a result of any member of the Group being taxed as a pass-through entity for U.S. Federal,
state and local income tax purposes or attributable to any member of the Group, provided that the actions in paragraph (ii) above
shall only be permitted if there is no Event of Default which is continuing under the Amended Facility Agreement and no
Event of Default would arise from the payment of such dividend.
|
|
6.3
|
New capital raises or financing
|
|
|
(a)
|
Save as provided below:
|
|
|
(i)
|
no new debt or equity issuance shall be raised and no new Financial Indebtedness shall be incurred
by the Group (including, for the avoidance of doubt, inter-company loans);
|
|
|
(ii)
|
no non-arm’s length disposals of any asset relating to the
Group fleet shall be made; and
|
|
|
(iii)
|
no additional Security Interests securing existing Financial Indebtedness will be created or permitted
to subsist,
|
during the
period up to and including the 2020 Deferral Final Repayment Date.
|
|
(b)
|
The restrictions in Clause 6.3(a) shall not apply in relation to:
|
|
|
(i)
|
any refinancing of any bond issuance of, or loan entered into by, the Group and maturing during
such period, and which, in each case, has been (or will be) listed in the Information Package submitted to the Agent prior to the
2020 Deferral Effective Date;
|
|
|
(ii)
|
any debt or equity issuance being raised prior to 31 December 2021 to provide the Group with crisis
and/or recovery related funding in respect of the impact of the Covid-19 pandemic;
|
|
|
(iii)
|
any debt or equity issuance being raised on or after 31 December 2021 to support the Group with
the impact of the Covid-19 pandemic, made with the prior written consent of SACE;
|
|
|
(iv)
|
any debt or equity issuance being raised to finance any instalment of a cruise vessel already contracted
for or contracted for during such period or any refurbishment, maintenance, upgrade or lengthening of a cruise ship during such
period;
|
|
|
(v)
|
any debt or equity issuance being raised to finance capital expenditure for projects which are
already contracted for but in respect of which committed financing has not yet been obtained, and which, in each case has been
(or will be) listed in the Information Package submitted to the Agent prior to the 2020 Deferral Effective Date;
|
|
|
(vi)
|
any extension of revolving credit facilities;
|
|
|
(vii)
|
any new debt or equity issuance otherwise agreed by SACE; or
|
|
|
(viii)
|
any inter-company loan which:
|
|
|
(A)
|
is existing as of the date of the 2020 Amendment Agreement;
|
|
|
(B)
|
is made among any Group members provided that:
|
|
|
(1)
|
any inter-company loan is made solely for the purpose of regulatory or tax purposes carried out
in the ordinary course of business and on an arm’s length basis; and
|
|
|
(2)
|
the aggregate principal amount of any inter-company loans outstanding pursuant to this Clause 6.3(b)(viii)(B)
does not exceed fifty million Dollars ($50,000,000) at any time; or
|
|
|
(C)
|
has been approved with the prior written consent of SACE.
|
|
|
6.4
|
Additional financial reporting
|
In addition
to the information to be provided in accordance with clause 13.2 (Information) of the Amended Facility Agreement and clause
11.3 (Provision of financial statements) (as amended and supplemented by this Agreement) of the Guarantee, the Guarantor
undertakes to provide to the Agent a written report (in form and substance satisfactory to SACE):
|
|
(a)
|
from the Effective Date until the end of the Deferral Period, on
a monthly basis within ten (10) days after the end of each month, covering the cashflow projections for each month for the period
from the date of the relevant report until 31 March 2022, with a first monthly period commencing on 1 April 2020; and
|
|
|
(b)
|
thereafter until the 2020 Deferral Final Repayment Date, on a quarterly
basis within forty-five (45) days after the end of each quarter, covering the cashflow projections for the following twenty-four
(24) months, with the first quarterly period commencing on 1 April 2021.
|
|
|
6.5
|
Breach of new covenants or the Principles
|
Failure to
comply with the provisions of Clauses 6.1 to 6.4 inclusive and deferred costs payable pursuant to Clause 5.1(h)(ii) in respect
of the 2020 Deferral Tranche, or to otherwise duly perform and observe the other requirements and obligations set out in the Principles
shall, in each case, not constitute an Event of Default under the Facility Agreement but shall (in the case of any failure that
is capable of remedy (in the opinion of the Agent, at its sole discretion), including any failure to comply with Clause 6.1 or
Clause 6.4, only if such failure is not remedied within the Relevant Period pursuant to clause 18.4 of the Amended Facility Agreement
from the date of such failure to comply):
|
|
(a)
|
reinstate from the date of such breach the requirement to comply
with the financial covenants set out in clause 11.15 (Financial covenants) of the Guarantee which was otherwise suspended
by operation of this Agreement;
|
|
|
(b)
|
in respect of Clauses 6.2 (Dividend restriction) and 6.3
(New capital raises or financing):
|
|
|
(A)
|
the 2020 Deferral Commitments and the availability of the 2020 Deferral Tranche will be immediately
cancelled;
|
|
|
(B)
|
all or part of the 2020 Deferral Tranche, together with accrued
interest, deferred costs pursuant to clause 6.4 (Deferred Costs) of the Amended Facility Agreement and all other amounts
accrued or outstanding under the Amended Facility Agreement in connection with the 2020 Deferral Tranche will be immediately due
and payable, (including, for the avoidance of doubt, any breakage costs pursuant to clause 20.2 (Breakage costs) of the
Facility Agreement); and
|
|
|
(c)
|
in respect of Clauses 6.1 (Payments under the Shipbuilding Contracts) and 6.4 (Additional
financial reporting), entitle the Agent, (acting on the instructions of the Lenders), by notice to the Borrower to:
|
|
|
(A)
|
cancel the 2020 Deferral Commitments and the availability of the 2020 Deferral Tranche whereupon
it shall immediately be cancelled; and
|
|
|
(B)
|
declare that all or part of the 2020 Deferral Tranche, together with accrued interest, deferred
costs pursuant to clause 6.4 (Deferred Costs) of the Amended Facility Agreement and all other amounts accrued or outstanding
under the Amended Facility Agreement in connection with the 2020 Deferral Tranche be immediately due and payable, whereupon they
shall become immediately due and payable (including, for the avoidance of doubt, any breakage costs pursuant to clause 20.2 (Breakage
costs) of the Facility Agreement).
|
Clause 13.19 (further assurance)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
|
|
(a)
|
Clause 11.6 (transaction costs) of the Facility Agreement, as amended and supplemented by
this Agreement, applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
|
|
|
(b)
|
The Borrower shall pay to each of (i) the Agent (for the account of each Lender) and (ii) SACE
a handling fee in the amount and at times agreed in the 2020 Deferral Fee Letters.
|
Clause 32 (notices)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
This Agreement 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
Agreement.
|
|
11
|
Signing Electronically
|
The Parties
acknowledge and agree that they may execute this Agreement and any variation or amendment to the same, by electronic instrument.
The Parties agree that the electronic signatures appearing on the documents shall have the same effect as handwritten signatures
and the use of an electronic signature on this Agreement shall have the same validity and legal effect as the use of a signature
affixed by hand and is made with the intention of authenticating this Agreement, and evidencing the Parties’ intention to
be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise
each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests
including contract management.
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
|
|
(a)
|
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 or any non-contractual
obligation arising out of or in connection with this Agreement) (a "Dispute").
|
|
|
(b)
|
The Obligors accept that the courts of England are the most appropriate and convenient courts to
settle Disputes and accordingly no Obligor will argue to the contrary.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other
than an Obligor incorporated in England and Wales):
|
|
|
(i)
|
irrevocably appoints Hannaford Turner LLP, currently of 9 Cloak Lane, London EC4R 2RU, UK as its
agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document;
and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate
the proceedings concerned.
|
|
|
(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent
for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within 10 days of such
event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for
this purpose.
|
This Agreement has been entered into
on the date stated at the beginning of this Agreement.
Execution
Pages
BORROWER
|
SIGNED by
|
|
)
|
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
|
|
MARINA NEW BUILD, LLC
|
|
)
|
|
|
GUARANTOR
|
SIGNED by
|
|
)
|
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
|
|
NCL CORPORATION LTD.
|
|
)
|
|
|
|
|
|
|
|
|
CHARTERER
|
SIGNED by
|
|
)
|
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
|
|
OCEANIA CRUISES S. DE R.L.
|
|
)
|
|
|
SHAREHOLDER
|
SIGNED by
|
|
)
|
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
|
|
OCEANIA CRUISES S. DE R.L.
|
|
)
|
|
|
LENDERS
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
CRÉDIT AGRICOLE CORPORATE
|
|
)
|
|
|
|
AND INVESTMENT BANK
|
|
)
|
|
|
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
SOCIÉTÉ GÉNÉRALE
|
|
)
|
|
|
|
|
|
|
|
|
MANDATED LEAD ARRANGERS
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
CRÉDIT AGRICOLE CORPORATE
|
|
)
|
|
|
|
AND INVESTMENT BANK
|
|
)
|
|
|
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
SOCIÉTÉ GÉNÉRALE
|
|
)
|
|
|
AGENT
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
|
)
|
|
|
|
INVESTMENT BANK
|
|
)
|
|
|
SACE AGENT
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
|
)
|
|
|
|
INVESTMENT BANK
|
|
)
|
|
|
Exhibit 10.5
Execution Version
[*]: THE IDENTIFIED INFORMATION HAS
BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED
Dated 4 June 2020
AMENDMENT TO TERM LOAN FACILITY
LEONARDO
ONE, LTD.
as Borrower
and
NCL CORPORATION LTD.
as Guarantor
and
The Banks
and Financial Institutions
LISTED IN SCHEDULE 1
as Lenders
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
BNP PARIBAS FORTIS S.A./N.V.
KFW IPEX-BANK GMBH
HSBC BANK PLC
CASSA DEPOSITI E PRESTITI S.P.A.
as Joint Mandated Lead Arrangers
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
as Agent
and SACE Agent
and
Crédit
Agricole Corporate and Investment Bank
as Security Trustee
SUPPLEMENTAL
AGREEMENT
relating to a facility agreement originally
dated 12 April 2017 (as amended and restated by an amendment and restatement agreement dated 21
November 2017) in respect of the part financing of the 3,300 passenger cruise ship
newbuilding presently designated as Hull No. [*] at Fincantieri S.p.A.
Index
|
Clause
|
|
Page
|
|
|
|
|
|
1
|
Definitions and Interpretation
|
1
|
|
2
|
Conditions Precedent and Conditions Subsequent
|
2
|
|
3
|
Representations
|
3
|
|
4
|
Acknowledgment and Acceptance of the Principles
|
3
|
|
5
|
Amendments to Facility Agreement and other Finance Documents
|
3
|
|
6
|
New Covenants
|
16
|
|
7
|
Further Assurance
|
18
|
|
8
|
Costs and Expenses
|
18
|
|
9
|
Notices
|
19
|
|
10
|
Counterparts
|
19
|
|
11
|
Signing Electronically
|
19
|
|
12
|
Governing Law
|
19
|
|
13
|
Enforcement
|
19
|
Schedules
|
Schedule 1 Lenders and Commitments
|
21
|
|
Schedule 2 Conditions Precedent
|
23
|
|
Schedule 3 Information Package
|
24
|
|
Schedule 4 Form of Effective Date Certificate
|
25
|
Execution
|
Execution Pages – Leonardo One – Supplemental Agreement
|
26
|
THIS
AGREEMENT is made on 4 June 2020
Parties
|
|
(1)
|
LEONARDO ONE, LTD., an exempted company incorporated under the laws of Bermuda whose registered
office is at Park Place, 55 Par-la-Ville Road, Hamilton HM11, Bermuda as borrower (the "Borrower")
|
|
|
(2)
|
NCL CORPORATION LTD., an exempted company incorporated under the laws of Bermuda with its
registered office at Cumberland House, 9th Floor, 1 Victoria Street, Hamilton HM11, Bermuda (the "Guarantor")
|
|
|
(3)
|
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Lenders and Commitments) as lenders
(the "Lenders")
|
|
|
(4)
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France, BNP PARIBAS FORTIS S.A./N.V.
of 3, Montagne du Parc, 1 KA1E, 1000 Brussels, Belgium, KFW IPEX-BANK GMBH of Palmengartenstr,
5-9 60325, Frankfurt, HSBC BANK PLC of Level 2, 8 Canada Square, London, E14 5HQ, United Kingdom and CASSA DEPOSITI E
PRESTITI S.P.A. of Via Goito, 4 – 00185, Roma, Italy as joint mandated lead arrangers (the "Mandated Lead
Arrangers")
|
|
|
(5)
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as agent and SACE agent (the "Agent"
and the "SACE Agent")
|
|
|
(6)
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as security trustee (the "Security
Trustee")
|
Background
|
|
(A)
|
By the Facility Agreement, the Lenders agreed to make available to the Borrower a facility of (originally)
the Dollar Equivalent of up to €640,000,000 and the amount of the SACE Premium (but not exceeding $868,108,108.11) for the
purpose of assisting the Borrower in financing (a) the payment or reimbursement under the Shipbuilding Contract of all or part
of 80% of the Final Contract Price up to the Eligible Amount and (b) reimbursement to the Borrower of 100% of the First Instalment
of the SACE Premium paid by it to SACE and payment to SACE of 100% of the Second Instalment of the SACE Premium (as defined therein).
|
|
|
(B)
|
Due to the unprecedented and extraordinary impacts of the Covid-19 pandemic on the cruise sector
and cruise operators, SACE S.p.A. has informed the cruise operators of its availability to evaluate certain measures (the "Temporary
Measures") applicable in relation to certain qualifying loan agreements in order to assist companies which
are financially sound but dealing with the impact of the temporary but unprecedented Covid-19 pandemic; the possibility to access
to such measures is subject, amongst other things, to certain principles dated 15 April 2020 for
cruise lines offered by SACE (as further defined below, the "Principles").
|
|
|
(C)
|
Pursuant to the consent request letter dated 18 April 2020, the
Borrower and the Guarantor notified the Agent and the SACE Agent of the wish to benefit from the Temporary Measures in relation
to certain loan agreements listed therein, including the Facility Agreement, and requested, amongst other things, the temporary
suspension of certain covenants under the Guarantee and the addition of certain covenants under the Facility Agreement for a period
of one year from 1 April 2020 to 31 March 2021 (the "Borrower Request").
|
|
|
(D)
|
On 25 May 2020, the Agent (for and on behalf of the Lenders)
and SACE provided their consent to part of the Borrower Request in accordance with and subject to certain conditions as set out
in this supplemental agreement (the "Agreement").
|
|
|
(E)
|
The Parties have agreed to enter into this Agreement for the purposes of, inter alia, documenting
the required amendments identified in the Principles.
|
Operative
Provisions
|
|
1
|
Definitions and Interpretation
|
In this Agreement:
"2020
Deferral Fee Letters" means any letter between the Agent
and any Obligor which sets out the fees payable in connection with the arrangements contemplated by this Agreement.
"2020
Finance Documents" means this Agreement and each 2020 Deferral Fee Letter.
"Amended
Facility Agreement" means the Facility Agreement as amended and supplemented by this Agreement.
"Deferral
Period" means the period from 1 April 2020 to 31 March 2021.
"Effective
Date" means the date on which the Agent notifies the Borrower, the other Creditor Parties and SACE as to the satisfaction
of the conditions precedent as provided in Clause 2.1(a).
"Facility
Agreement" means the facility agreement dated 12 April 2017 (as amended and restated
pursuant to an amendment and restatement agreement dated 21 November 2017) and made between, amongst others, (i) the Borrower,
(ii) the Lenders, (iii) the Mandated Lead Arrangers, (iv) the Agent and the SACE Agent and (v) the Security Trustee.
"Information
Package" means the information package in connection with the "Debt Holiday" application in the form
set out in Schedule 3 (Information Package) to this Agreement, submitted, or to be submitted (as the case may be), by the
Borrower (or the Guarantor on its behalf) in order to obtain the benefit of the measures provided for in the Principles for the
purpose of the Facility Agreement (as amended) and certain of the Borrower’s and the Guarantor’s obligations under
the Facility Agreement.
"Obligors"
means the Borrower and the Guarantor.
"Party"
means a party to this Agreement.
"Principles"
means the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April
2020, which sets out certain key principles and parameters relating to the qualifying Loan Agreements (as defined therein) and
being applicable to SACE-covered loan agreements such as the Facility Agreement.
"SACE"
means SACE S.p.A., an Italian joint stock company (società per azioni) with a sole shareholder, whose registered
office is located at Piazza Poli 37/42, 00187 Rome, Italy and registered with the Companies Registry of Rome under number 05804521002.
Defined expressions in the
Facility Agreement and, with effect from the Effective Date, the Amended Facility Agreement, shall have the same meanings when
used in this Agreement unless the context otherwise requires or unless otherwise defined in this Agreement.
|
|
1.3
|
Application of construction and interpretation provisions of Facility Agreement
|
Clause 1.2 (construction
of certain terms) of the Facility Agreement applies to this Agreement as if it were expressly incorporated in it with any necessary
modifications.
|
|
1.4
|
Designation as a Finance Document
|
The Borrower and the Agent
designate this Agreement as a Finance Document.
|
|
(a)
|
Unless provided to the contrary in a Finance Document, a person who is not a Party has no right
under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the
benefit of any term of this Agreement other than SACE, who may enforce or to enjoy the benefit of and rely on the provisions of
this Agreement and the Amended Facility Agreement subject to the provisions of the Third Parties Act.
|
|
|
(b)
|
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party
(other than SACE) is not required to rescind or vary this Agreement at any time.
|
|
|
(c)
|
For the avoidance of doubt and in accordance with clause 36.4 (Third party rights) of the
Facility Agreement, nothing in this Clause 1.5 (Third party rights) shall limit or prejudice the exercise by SACE of its
rights under this Agreement or the Finance Documents in the event that such rights are subrogated or assigned to it pursuant to
the terms of the SACE Insurance Policy.
|
|
|
2
|
Conditions Precedent and Conditions Subsequent
|
|
|
2.1
|
The Effective Date cannot occur unless:
|
|
|
(a)
|
the Agent has received (or on the instructions of all the Lenders, waived receipt of) all of the
documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent;
|
|
|
(b)
|
save as disclosed in writing to the Agent and SACE prior to the
date of this Agreement, the representations and warranties contained in Clause 3 (Representations) are true and correct
on, and as of, each such time as if each was made with respect to the facts and circumstances existing at such time;
|
|
|
(c)
|
save as disclosed in writing to the Agent and SACE prior to the
date of this Agreement, no Event of Default, event or circumstance specified in clause 18 (Events of Default) which would
(with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination
of any of the foregoing) be an Event of Default, event resulting in mandatory prepayment of the Loan pursuant to Clause 16.3 (Mandatory
prepayment – sale and total loss) and Clause 16.4 (Mandatory prepayment – SACE insurance policy) of the
Facility Agreement shall have occurred and be continuing or would result from the amendment of the Facility Agreement pursuant
to this Agreement; and
|
|
|
(d)
|
the Agent is satisfied that the Effective Date can occur and have not provided any instructions
to the contrary informing the Parties that the Effective Date cannot occur.
|
|
|
2.2
|
Upon fulfilment or waiver of the conditions set out in Clause 2.1 above, the Agent shall provide
the Borrower and the Lenders with a copy of the executed certificate in the form set out in Schedule 4 (Form of Effective Date
Certificate) confirming that the Effective Date has occurred and such certificate shall be binding on all Parties.
|
|
|
2.3
|
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary
before the Agent provides the certificate described in Clause 2.2 above, the Creditor Parties authorise (but do not require) the
Agent to execute and provide such certificate. The Agent shall not be liable for any damages, costs or losses whatsoever as a result
of giving any such certificate.
|
|
|
3.1
|
Facility Agreement representations
|
On the date of this Agreement
and on the Effective Date, each Obligor that is a party to the Facility Agreement makes each of the representations and warranties
as set out in clause 11 (representations and warranties) of the Facility Agreement, as amended and supplemented by this
Agreement and updated with appropriate modifications to refer to the 2020 Finance Documents.
|
|
3.2
|
Finance Document representations
|
Each Obligor makes the representations
and warranties set out in the Finance Documents (other than the Facility Agreement) to which it is a party, as amended and supplemented
by this Agreement and updated with appropriate modifications to refer to this Agreement, by reference to the circumstances then
existing on the date of this Agreement.
|
|
4
|
Acknowledgment and Acceptance of the Principles
|
Each
Obligor confirms its acknowledgment to the Principles and full acceptance of all terms, requirements and conditions thereunder.
|
|
5
|
Amendments to Facility Agreement and other Finance Documents
|
|
|
5.1
|
Specific amendments to the Facility Agreement
|
With effect on and from the
Effective Date the Facility Agreement shall be, and shall be deemed by this Agreement to be, amended as follows:
|
|
(a)
|
In clause 1.1 (Definitions) of the Facility Agreement, the following definitions shall be
added in alphabetical order:
|
|
|
(i)
|
"2020 Amendment Agreement" means the amendment to this Agreement dated 4 June 2020 between, amongst others, the Borrower, the Agent and the SACE Agent.
|
|
|
(ii)
|
"2020 Deferral Effective Date" has the meaning given to the term Effective Date
in the 2020 Amendment Agreement.
|
|
|
(iii)
|
"2020 Deferral Fee Letters"
means any letter between the Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated
by the 2020 Amendment Agreement.
|
|
|
(iv)
|
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework
for the recovery and resolution of credit institutions and investment firms.
|
|
|
(v)
|
"Deferral Period" means the period from 1 April 2020 to 31 March 2021.
|
|
|
(vi)
|
"Funding Rate"
means any individual rate notified by a Lender to the Agent pursuant to sub-paragraph (i) of paragraph (e) of Clause 6.9 (Cost
of funds).
|
|
|
(vii)
|
"Interpolated Screen Rate"
means, in relation to the Loan or any part of the Loan, the rate which results from interpolating on a linear basis between:
|
|
|
(i)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which
is less than the Interest Period of the Loan or that part of the Loan; and
|
|
|
(ii)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which
exceeds the Interest Period of the Loan or that part of the Loan,
|
each as
of the Specified Time for Dollars.
|
|
(viii)
|
"Principles" means
the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April 2020, which sets out certain key
principles and parameters relating to the qualifying Loan Agreements (as defined therein) and being applicable to SACE-covered
loan agreements such as this Agreement.
|
|
|
(ix)
|
"Reference Bank Rate"
means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the
Reference Banks:
|
|
|
(A)
|
the Reference Bank is a contributor to the Screen Rate; and
|
|
|
(B)
|
it consists of a single figure,
|
as the rate
(applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to
submit to the relevant administrator; or
|
|
(ii)
|
in any other case, as the rate at which the relevant Reference Bank could fund itself in Dollars
for the relevant period with reference to the unsecured wholesale funding market.
|
|
|
(x)
|
"Reference Bank Quotation"
means any quotation supplied to the Agent by a Reference Bank.
|
|
|
(xi)
|
"Reference Banks"
means such entities as may be appointed by the Agent in consultation with the Borrower.
|
|
|
(xii)
|
"Relevant Nominating Body" means any applicable central bank, regulator or other
supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request
of, any of them or the Financial Stability Board.
|
|
|
(xiii)
|
"Replacement Benchmark" means a benchmark rate which is:
|
|
|
(i)
|
formally designated, nominated or recommended as the replacement for a Screen Rate by:
|
|
|
(A)
|
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark
rate measures is the same as that measured by that Screen Rate); or
|
|
|
(B)
|
any Relevant Nominating Body,
|
and if replacements
have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the
"Replacement Benchmark"
will be the replacement under paragraph (B) above;
|
|
(ii)
|
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international
or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
|
|
|
(iii)
|
in the opinion of the Majority Lenders and the Borrower, an appropriate successor to a Screen Rate.
|
|
|
(xiv)
|
"Screen Rate"
means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over
the administration of that rate) for Dollars for the relevant period displayed (before any correction, recalculation or republication
by the administrator) on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that
rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson
Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant
rate after consultation with the Borrower.
|
|
|
(xv)
|
"Screen Rate Contingency Period"
means fifteen (15) Business Days.
|
|
|
(xvi)
|
"Screen Rate Replacement Event"
means, in relation to a Screen Rate:
|
|
|
(i)
|
the methodology, formula or other means of determining that Screen Rate has, in the opinion of
the Majority Lenders and the Borrower materially changed;
|
|
|
(1)
|
the administrator of that Screen Rate or its supervisor publicly announces that such administrator
is insolvent; or
|
|
|
(2)
|
information is published in any order, decree, notice, petition or filing, however described, or
filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of that Screen Rate is insolvent,
|
provided
that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
|
(B)
|
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide
that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that
Screen Rate;
|
|
|
(C)
|
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate
has been or will be permanently or indefinitely discontinued; or
|
|
|
(D)
|
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no
longer be used; or
|
|
|
(iii)
|
the administrator of that Screen Rate determines that that Screen Rate should be calculated in
accordance with its reduced submissions or other contingency or fallback policies or arrangements and either:
|
|
|
(A)
|
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority
Lenders and the Borrower) temporary; or
|
|
|
(B)
|
that Screen Rate is calculated in accordance with any such policy or arrangement for a period no
less than the Screen Rate Contingency Period; or
|
|
|
(iv)
|
in the opinion of the Majority Lenders and the Borrower, that Screen Rate is otherwise no longer
appropriate for the purposes of calculating interest under this Agreement.
|
|
|
(xvii)
|
"Specified Time"
means a day or time determined in accordance with the following:
|
|
|
(i)
|
if LIBOR is fixed, the Quotation Day as of 11:00 am London time; and
|
|
|
(ii)
|
in relation to a Reference Bank Rate calculated by reference to the available quotations in accordance
with Clause 6.7 (Calculation of Reference Bank Rate), noon on the Quotation Day.
|
|
|
(xviii)
|
"UK Bail-In Legislation" means (to the extent that the United Kingdom is not an
EEA Member Country which has implemented, or implements, Article 55 BRRD) Part 1 of the United Kingdom Banking Act 2009 and any
other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms
or other financial institutes or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
|
|
|
(b)
|
In clause 1.1 (Definitions) of the Facility Agreement, the following definitions shall be
amended as follows:
|
|
|
(i)
|
the definition of "Bail-In Legislation" shall be deleted and replaced as follows:
|
“"Bail-In
Legislation" means:
|
|
(A)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article
55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
|
|
(B)
|
in relation to any state other than such an EEA Member Country or (to the extent that the United
Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires
contractual recognition of any Write-down and Conversion Powers contained in that law or regulation”;
|
|
|
(ii)
|
the definition of "Finance Documents" shall be amended by adding the 2020 Amendment Agreement
and the 2020 Deferral Fee Letters as Finance Documents;
|
|
|
(iii)
|
the definition of "LIBOR" shall be deleted and replaced as follows:
|
“"LIBOR"
means, in relation to the Loan or any part of the Loan:
(A) the
applicable Screen Rate as of the Specified Time for Dollars and for a period equal in length to the Interest Period of the Loan
or that part of the Loan; or
(B) as otherwise
determined pursuant to Clause 6.7 (Unavailability of Screen Rate).
and if, in
either case, that rate is less than zero, LIBOR shall be deemed to be zero”;
|
|
(iv)
|
the definition of "Overnight LIBOR" shall be deleted and replaced as follows:
|
“"Overnight
LIBOR" means, in relation to the Loan or any part of the
Loan:
|
|
(A)
|
on any date, the applicable day to day Screen Rate as of the Specified Time for Dollars; or
|
|
|
(B)
|
as otherwise determined pursuant to Clause 6.7 (Unavailability of Screen Rate),
|
and if, in
either case, that rate is less than zero, Overnight LIBOR shall be deemed to be zero”;
|
|
(v)
|
the definition of "Quotation Date" shall be deleted and replaced as follows:
|
"Quotation
Day" means in relation to any period for which an interest rate is to be determined, two Business Days before the
first day of that period unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will be
determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be
given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days),
and all references
to "Quotation Date" shall be replaced with references to "Quotation Day.
|
|
(vi)
|
the definition of "Relevant Interbank Market" shall be deleted and replaced as follows:
|
"Relevant
Interbank Market" means the London interbank market.
|
|
(vii)
|
the definition of "Write-down and Conversion Powers" shall be deleted and replaced as
follows:
|
“"Write-down
and Conversion Powers" means:
|
|
(i)
|
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time
to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
|
|
|
(ii)
|
in relation to any other applicable Bail-In Legislation:
|
|
|
(A)
|
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those
powers; and
|
|
|
(B)
|
any similar or analogous powers under that Bail-In Legislation; and
|
|
|
(iii)
|
in relation to any UK Bail-In Legislation:
|
|
|
(A)
|
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of
those powers; and
|
|
|
(B)
|
any similar or analogous powers under that UK Bail-In Legislation”; and
|
|
|
(c)
|
Clauses 6.6 (Market disruption) to clause 6.11 (Alternative rate of interest in absence
of agreement) inclusive of the Facility Agreement shall be deleted and replaced by the following provisions:
|
“6.6
Unavailability of Screen Rate
|
|
(a)
|
Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period
of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to
the Interest Period of the Loan or that part of the Loan.
|
|
|
(b)
|
Reference Bank Rate: If no Screen Rate is available for LIBOR for:
|
|
|
(ii)
|
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the
Interpolated Screen Rate,
|
|
|
(iii)
|
the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time and for a period
equal in length to the Interest Period of the Loan or that part of the Loan.
|
|
|
(c)
|
Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for
Dollars or the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause
6.9 (Cost of funds) shall apply to the Loan or that part of the Loan for that Interest Period.
|
6.7 Calculation
of Reference Bank Rate
|
|
(a)
|
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate
but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis
of the quotations of the remaining Reference Banks.
|
|
|
(b)
|
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation,
there shall be no Reference Bank Rate for the relevant Interest Period.
|
6.8 Market
Disruption
If before
close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notification from a Lender
or Lenders (whose participations in the Loan or the relevant part of the Loan in aggregate exceed 50 per cent. of the Loan or the
relevant part of the Loan as appropriate) that the cost to it or each of them of funding its participation in the Loan or that
part of the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 6.9 (Cost of funds)
shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
6.9 Cost
of funds
|
|
(a)
|
If this Clause 6.9 (Cost of funds) applies, the rate of interest on the Loan or the relevant
part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
|
|
(ii)
|
the weighted average of the rates notified to the Agent by each Lender as soon as practicable and
in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate
per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source
it may reasonably select.
|
|
|
(b)
|
If this Clause 6.9 (Cost of funds) applies and the Agent or the Borrower so requires, the
Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute
basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
|
|
(c)
|
Subject to Clause 6.10 (Replacement of Screen Rate), any
substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the
Borrower, be binding on all Parties.
|
|
|
(d)
|
If paragraph (e) below does not apply and any rate notified to the Agent under sub-paragraph (ii)
of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
|
|
(e)
|
If this Clause 6.9 (Cost of funds) applies pursuant to Clause 6.8 (Market disruption)
and:
|
|
|
(i)
|
a Lender's Funding Rate is less than LIBOR; or
|
|
|
(ii)
|
a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph
(a) above,
|
the cost to
that Lender of funding its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed,
for the purposes of paragraph (a) above, to be LIBOR.
|
|
(f)
|
If this Clause 6.9 (Cost of funds) applies but any Lender does not supply a quotation by
the time specified in sub-paragraph (ii) of paragraph (a) above, the rate of interest shall be calculated on the basis of the quotations
of the remaining Lenders.
|
6.10 Replacement
of Screen Rate
If a Screen
Rate Replacement Event has occurred in relation to the Screen Rate for Dollars, any amendment or waiver which relates to:
|
|
(i)
|
providing for the use of a Replacement Benchmark; and
|
|
|
(A)
|
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
|
|
(B)
|
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement
(including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes
of this Agreement);
|
|
|
(C)
|
implementing market conventions applicable to that Replacement Benchmark;
|
|
|
(D)
|
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark;
or
|
|
|
(E)
|
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer
of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment
or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body,
the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
may be made
with the consent of the Agent (acting on the instructions of the Majority Lenders), SACE and SIMEST (if applicable) and the Borrower,
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(d)
|
Clause 12.2 (Information) shall be amended by:
|
|
|
(i)
|
deleting sub-clause (b); and
|
|
|
(ii)
|
deleting sub-clause (c) and replacing it with the following wording:
|
“(c)
as soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter for the first three
quarters in any fiscal year and within 90 days for the final quarter) a copy of the unaudited consolidated quarterly management
accounts of the Guarantor (it being understood that the delivery by the Guarantor of quarterly or annual reports as filed with
the Securities and Exchange Commission in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements
of this paragraph (c)”.
|
|
(e)
|
Clause 18.4 (Breach of other obligations) shall be amended by adding a new sub-clause (d)
as follows:
|
“(d)
any breach of any financial covenant contained in Clause 11.15 of the Guarantee arising on a testing date during the Deferral Period
shall not, subject to no (i) Event of Default under Clauses 18.7 (Winding-up) to Clause 18.13 (Cessation of business)
(inclusive) having occurred and being continuing or (ii) event entitling the Agent to exercise any rights granted to it pursuant
to Clause 6.5 (Breach of new covenants or the Principles) of the 2020 Amendment Agreement, including, without limitation,
the ability to terminate the waiver of the financial covenants granted pursuant to clause 11.15 of the Guarantee as amended by
the 2020 Amendment Agreement having occurred, constitute an Event of Default.”
|
|
(f)
|
A cross-default occurring solely due to a breach of financial covenants in respect of the Guarantee
and applying to the Group in another SACE-backed loan agreement to which the Principles apply shall not, subject to the terms of
the Amended Facility Agreement, result in an Event of Default and, accordingly, a new clause 18.6(e) shall be added as follows:
|
“(e)
No Event of Default will occur, or be deemed to have occurred, under this Clause 18.6 (Cross default) if such Event of Default
occurs during the Deferral Period (but without prejudice to the rights of the Lenders in respect of any further breach that may
occur following the expiry of the Deferral Period) and is caused solely as a result of a breach of financial covenants in respect
of the Group equivalent to those set out in clause 11.15 of the Guarantee, under, or in relation to, any other SACE-backed facility
agreement to which a Guarantor is a Party or has executed a Guarantee and to which the Principles apply, unless at the time of
such Event of Default, an event resulting in mandatory prepayment of the Loan pursuant to Clause 16.3 (Mandatory prepayment
– sale and total loss) and Clause 16.4 (Mandatory prepayment – SACE insurance policy) has occurred.”
|
|
(g)
|
A new clause 39 (Confidentiality of funding rates and reference bank quotations) shall be
added as follows:
|
39 Confidentiality
of funding rates and reference bank quotations.
39.1 Confidentiality
and disclosure
|
|
(a)
|
The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and
(d) below.
|
|
|
(b)
|
The Agent may disclose:
|
|
|
(i)
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower
pursuant to Clause 6.5 (Notification of Interest Periods and Floating Interest Rate);
|
|
|
(ii)
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration
services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide
those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially
in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other
form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
|
|
|
(c)
|
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose
any Funding Rate, to:
|
|
|
(i)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers,
auditors, partners and representatives, if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant
to this sub-paragraph (i) is informed in writing of its confidential nature and that it may be price sensitive information except
that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
|
|
(ii)
|
any person to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is
to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable
to do so in the circumstances;
|
|
|
(iii)
|
any person to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding
Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive
information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as
the case may be, it is not practicable to do so in the circumstances; and
|
|
|
(iv)
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
|
|
(d)
|
The Agent’s obligations in this Clause 39 (Confidentiality of Funding Rates and Reference
Bank Quotations) relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under
Clause 6.5 (Notification of Interest Periods and Floating Interest Rate) provided that (other than pursuant to sub-paragraph
(i) of paragraph (b) above) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such
notification.
|
39.2 Related
obligations
|
|
(a)
|
The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not
to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
|
|
(b)
|
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the
relevant Lender or Reference Bank, as the case may be:
|
|
|
(i)
|
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of (c) of Clause 39.1
(Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph
during the ordinary course of its supervisory or regulatory function; and
|
|
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this Clause 39 (Confidentiality
of Funding Rates and Reference Bank Quotations).
|
39.3 No
Event of Default
No Event
of Default will occur under Clause 18.4 (Breach of other obligations) by reason only of an Obligor’s failure to comply
with this Clause 39 (Confidentiality of Funding Rates and Reference Bank Quotations).
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
5.2
|
Specific Amendments to Guarantee
|
With effect on and from the
Effective Date, Clause 11.3 (Provision of financial statements) of the Guarantee shall be, and shall be deemed by this Agreement
to be amended as follows:
|
|
(a)
|
deleting sub-clause (b) and replacing it with the following wording:
|
“(b) as
soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter in respect of the first
three quarters of each fiscal year and 90 days in respect of the final quarter) a copy of the unaudited consolidated quarterly
management accounts of the Guarantor certified as to their correctness by the chief financial officer of the Guarantor (it being
understood that the delivery by the Guarantor of quarterly or annual reports as filed with the Securities and Exchange Commission
in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements of this paragraph (b))”;
|
|
(b)
|
deleting sub-clauses (e), (f) and (g) and replacing them with the following new clause (e):
|
“(e)
As soon as practicable (and in any event not later than January 31 of each fiscal year):
(i) updated
financial projections of the Group for at least the next five years (including an income statement, balance sheet statement and
cash flow statement and quarterly break downs for the first of those five years); and
(ii) an outline
of the assumptions supporting such budget and financial projections including but without limitation any scheduled drydockings.”,
and, for
the avoidance of doubt, subject to the provisions of Clause 5.5 (Borrower and Creditor Parties’ Confirmations and Waivers)
and Clause 6.5 (Breach of new covenants or the Principles), the financial covenants will continue to be tested and the reporting
obligations shall continue to apply in accordance with clause 11.3 (Provision of financial statements) of the Guarantee
(as amended and supplemented by this Agreement) in respect of the Deferral Period.
|
|
5.3
|
Guarantor confirmation
|
On the Effective Date the Guarantor
confirms that:
|
|
(a)
|
its Guarantee extends to the obligations of the Borrower under the Finance Documents as amended
and supplemented by this Agreement;
|
|
|
(b)
|
the obligations of the relevant Obligors under the Finance Documents as amended and supplemented
by this Agreement are included in the Secured Liabilities (as defined in the Facility Agreement); and
|
|
|
(c)
|
the Guarantee continues to have full force and effect in accordance with its terms as so extended.
|
|
|
5.4
|
Security confirmation
|
On the Effective Date, each
Obligor confirms that:
|
|
(a)
|
any Security Interest created by it under the Finance Documents extends to the obligations of the
relevant Obligors under the Finance Documents as amended and supplemented by this Agreement;
|
|
|
(b)
|
the obligations of the relevant Obligors under the Finance Documents as amended and supplemented
by this Agreement are included in the Secured Liabilities (as defined in the Finance Documents to which it is a party);
|
|
|
(c)
|
the Security Interests created under the Finance Documents continue in full force and effect on
the terms of the respective Finance Documents; and
|
|
|
(d)
|
to the extent that this confirmation creates a new Security Interest, such Security Interest shall
be on the terms of the Finance Documents in respect of which this confirmation is given.
|
|
|
5.5
|
Borrower and Creditor Parties’ Confirmations and Waivers
|
Notwithstanding
the amendments to the testing of the financial covenants contemplated by Clause 5.2, the Borrower and the Guarantor confirm that
the reporting obligations under clause 11.3 (Provision of financial statements) of the Guarantee (as amended and supplemented
by this Agreement) in respect of such financial covenants shall continue to apply. The Agent confirms that any breach of such financial
covenants arising on a testing date during the Deferral Period by reference to the financial position of the Group (on a consolidated
basis), shall not (without prejudice to the rights of the Lenders in respect of any further breach of such financial covenants
that may occur following the expiry of the Deferral Period, and subject further to no Event of Default under Clauses 18.7 (Winding-up)
to Clause 18.13 (Cessation of business) (inclusive) of the Amended Facility Agreement having occurred and being continuing)
result in an Event of Default.
|
|
5.6
|
Finance Documents to remain in full force and effect
|
The Finance Documents shall
remain in full force and effect and, from the Effective Date:
|
|
(a)
|
shall be, and shall be deemed by this Agreement to be amended (where
relevant) to include a cross reference to clause 23 (Bail-in) of the Facility Agreement as amended by this Agreement;
|
|
|
(b)
|
in the case of the Facility Agreement, as amended and supplemented pursuant to Clause 5.1 (Specific
amendments to the Facility Agreement);
|
|
|
(c)
|
in the case of the Guarantee, as amended and supplemented pursuant to Clause 5.2 (Specific Amendments
to Guarantee);
|
|
|
(d)
|
the Facility Agreement and the applicable provisions of this Agreement will be read and construed
as one document;
|
|
|
(e)
|
the Guarantee and the applicable provisions of this Agreement will be read and construed as one
document; and
|
|
|
(f)
|
except to the extent expressly waived by the amendments effected by this Agreement, no waiver is
given by this Agreement and the Lenders expressly reserve all their rights and remedies in respect of any breach of or other default
under the Finance Documents.
|
|
|
6.1
|
Payments under the Shipbuilding Contracts
|
Until 31
March 2021:
|
|
(a)
|
the Guarantor shall and the Guarantor shall procure that any member of the Group that has entered
into a shipbuilding contract with a shipbuilder or enters into any such shipbuilding contract, in each case which is financed with
the support of SACE (the “Covered Shipbuilding Contracts”) shall continue to
perform all of their respective obligations as set out in any Covered Shipbuilding Contract (including without limitation the payment
of any instalments due under any Covered Shipbuilding Contract (as the same may have been amended prior to the 2020 Deferral Effective
Date), and subject to any amendment agreed pursuant to Clause 6.1(b) below). The Guarantor shall and the Guarantor shall procure
that any member of the Group shall promptly notify the Agent and SACE of any failure by it to comply with any due and owing obligations
under a Covered Shipbuilding Contract; and
|
|
|
(b)
|
the Guarantor shall and the Guarantor shall procure that any member of the Group further undertakes
to consult with the Agent and SACE in respect of any proposed amendment to a Covered Shipbuilding
Contract insofar as any such proposed amendment relates to a payment instalment or (save as expressly permitted by the relevant
Amended Facility Agreement) a delivery date or any other substantial amendment which may affect the related financing and to obtain
the Agent and SACE’s approval prior to executing any such amendment.
|
No Obligor
shall:
|
|
(a)
|
declare, make or pay any dividend or other distribution (or interest on any unpaid dividend or
other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);
|
|
|
(b)
|
repay or distribute any dividend or share premium reserve;
|
|
|
(c)
|
make any repayment of any kind under any shareholder loan; or
|
|
|
(d)
|
redeem, repurchase (whether by way of share buy-back program or otherwise), defease, retire or
repay any of its share capital or resolve to do so,
|
during the
period up to and including 31 March 2021, except that (i) any Obligor may pay
dividends and other distributions, directly or indirectly, to the Guarantor for the purpose of providing liquidity to the Guarantor
to enable the Guarantor to satisfy payment obligations for which the Guarantor is an obligor and (ii) any Obligor may pay
dividends in respect of the tax liability to each relevant jurisdiction in respect of consolidated,
combined, unitary or affiliated tax returns for each relevant jurisdiction of the Group or holder of the Guarantor’s capital
stock with respect to income taxable as a result of any member of the Group being taxed as a pass-through entity for U.S. Federal,
state and local income tax purposes or attributable to any member of the Group, provided that the actions in paragraph (ii) above
shall only be permitted if there is no Event of Default which is continuing under the Amended Facility Agreement and no
Event of Default would arise from the payment of such dividend.
|
|
6.3
|
New capital raises or financing
|
|
|
(a)
|
Save as provided below:
|
|
|
(i)
|
no new debt or equity issuance shall be raised and no new Financial Indebtedness shall be incurred
by the Group (including, for the avoidance of doubt, inter-company loans);
|
|
|
(ii)
|
no non-arm’s length disposals of any asset relating to the Group fleet shall be made; and
|
|
|
(iii)
|
no additional Security Interests securing existing Financial Indebtedness will be created or permitted
to subsist,
|
during the
period up to and including 31 March 2021.
|
|
(b)
|
The restrictions in Clause 6.3(a) shall not apply in relation to:
|
|
|
(i)
|
any refinancing of any bond issuance of, or loan entered into by, the Group and maturing during
such period, and which, in each case, has been (or will be) listed in the Information Package submitted to the Agent prior to the
2020 Deferral Effective Date;
|
|
|
(ii)
|
any debt or equity issuance being] raised prior to 31 December 2021 to provide the Group with crisis
and/or recovery related funding in respect of the impact of the Covid-19 pandemic;
|
|
|
(iii)
|
any debt or equity issuance being raised on or after 31 December 2021 to support the Group with
the impact of the Covid-19 pandemic, made with the prior written consent of SACE;
|
|
|
(iv)
|
any debt or equity issuance being raised to finance any instalment of a cruise vessel already contracted
for or contracted for during such period or any refurbishment, maintenance, upgrade or lengthening of a cruise ship during such
period;
|
|
|
(v)
|
any debt or equity issuance being raised to finance capital expenditure for projects which are
already contracted for but in respect of which committed financing has not yet been obtained, and which, in each case has been
(or will be) listed in the Information Package submitted to the Agent prior to the 2020 Deferral Effective Date;
|
|
|
(vi)
|
any extension of revolving credit facilities;
|
|
|
(vii)
|
any new debt or equity issuance otherwise agreed by SACE; or
|
|
|
(viii)
|
any inter-company loan which:
|
|
|
(A)
|
is existing as of the date of the 2020 Amendment Agreement;
|
|
|
(B)
|
is made among any Group members provided that:
|
|
|
(1)
|
any inter-company loan is made solely for the purpose of regulatory or tax purposes carried out
in the ordinary course of business and on an arm’s length basis; and
|
|
|
(2)
|
the aggregate principal amount of any inter-company loans outstanding pursuant to this Clause 6.3(b)(viii)(B)
does not exceed fifty million Dollars ($50,000,000) at any time; or
|
|
|
(C)
|
has been approved with the prior written consent of SACE.
|
|
|
6.4
|
Additional financial reporting
|
In addition
to the information to be provided in accordance with clause 12.2 (Information) of the Amended
Facility Agreement and clause 11.3 (Provision of financial statements) (as amended and supplemented by this Agreement) of
the Guarantee, the Guarantor undertakes to provide to the Agent a written report (in form and substance satisfactory to SACE) from
the Effective Date until the end of the Deferral Period, on a monthly basis within ten (10) days after the end of each month, covering
the cashflow projections for each month for the period from the date of the relevant report until 31 March 2022, with a
first monthly period commencing on 1 April 2020.
|
|
6.5
|
Breach of new covenants or the Principles
|
Failure to
comply with the provisions of Clauses 6.1 to 6.4 inclusive, or to otherwise duly perform and observe the other requirements and
obligations set out in the Principles shall, in each case, not constitute an Event of Default under the Facility Agreement but
shall (in the case of any failure that is capable of remedy (in the opinion of the Agent, at its sole discretion), including any
failure to comply with Clause 6.1 or Clause 6.4, only if such failure is not remedied within the Relevant Period pursuant to clause
18.4 of the Amended Facility Agreement from the date of such failure to comply) reinstate from the date of such breach the requirement
to comply with the financial covenants set out in clause 11.15 (Financial covenants) of the Guarantee which was otherwise
suspended by operation of this Agreement.
Clause 12.20 (further assurance)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
|
|
(a)
|
Clause 10.11 (transaction costs) of the Facility Agreement, as amended and supplemented
by this Agreement, applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
|
|
|
(b)
|
The Borrower shall pay to each of (i) the Agent (for the account of each Lender) and (ii) SACE
a handling fee in the amount and at times agreed in the 2020 Deferral Fee Letters.
|
Clause 32 (notices)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
This Agreement 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
Agreement.
|
|
11
|
Signing Electronically
|
The Parties
acknowledge and agree that they may execute this Agreement and any variation or amendment to the same, by electronic instrument.
The Parties agree that the electronic signatures appearing on the documents shall have the same effect as handwritten signatures
and the use of an electronic signature on this Agreement shall have the same validity and legal effect as the use of a signature
affixed by hand and is made with the intention of authenticating this Agreement, and evidencing the Parties’ intention to
be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise
each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests
including contract management.
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
|
|
(a)
|
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 or any non-contractual
obligation arising out of or in connection with this Agreement) (a "Dispute").
|
|
|
(b)
|
The Obligors accept that the courts of England are the most appropriate and convenient courts to
settle Disputes and accordingly no Obligor will argue to the contrary.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other
than an Obligor incorporated in England and Wales):
|
|
|
(i)
|
irrevocably appoints Hannaford Turner LLP, currently of 9 Cloak Lane, London EC4R 2RU, UK as its
agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document;
and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate
the proceedings concerned.
|
|
|
(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent
for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within 10 days of such
event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for
this purpose.
|
This Agreement has been entered into
on the date stated at the beginning of this Agreement.
Execution
Pages – Leonardo One – Supplemental Agreement
BORROWER
|
SIGNED by
|
|
)
|
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
|
|
LEONARDO ONE, LTD.
|
|
)
|
|
|
GUARANTOR
|
SIGNED by
|
|
)
|
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
|
)
|
|
|
|
for and on behalf of
|
|
)
|
|
|
|
NCL CORPORATION LTD.
|
|
)
|
|
|
LENDERS
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
CRÉDIT AGRICOLE CORPORATE
|
|
)
|
|
|
|
AND INVESTMENT BANK
|
|
)
|
|
|
|
SIGNED by
|
|
)
|
|
/s/ Bruno Cloquet
|
|
duly authorised
|
|
)
|
|
Global Head of Exporters and Ecas Origination
|
|
for and on behalf of
|
|
)
|
|
/s/ Véronique De Schepper
|
|
BNP PARIBAS FORTIS S.A./N.V
|
|
)
|
|
Head of Middle Office Financing Solutions Brussels
|
|
SIGNED by
|
|
)
|
|
/s/ Natasha Seel
|
|
duly authorised
|
|
)
|
|
Attorney-in-fact
|
|
for and on behalf of
|
|
)
|
|
|
|
KFW IPEX-BANK GMBH
|
|
)
|
|
|
|
SIGNED by
|
|
)
|
|
/s/ Alessandro Mazzi
|
|
duly authorised
|
|
)
|
|
Head of Export & Asset Finance, Italy
|
|
for and on behalf of
|
|
)
|
|
& Global Head ECA Business Development
|
|
HSBC FRANCE, MILAN BRANCH
|
|
)
|
|
HSBC France, Milan Branch
|
|
SIGNED by
|
|
)
|
|
/s/ Lisbi Valdez
|
|
duly authorised
|
|
)
|
|
Head of Loans Portf. Management
|
|
for and on behalf of
|
|
)
|
|
|
|
CASSA DEPOSITI E PRESTITI S.P.A.
|
|
)
|
|
|
MANDATED LEAD ARRANGERS
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
CRÉDIT AGRICOLE CORPORATE
|
|
)
|
|
|
|
AND INVESTMENT BANK
|
|
)
|
|
|
|
SIGNED by
|
|
)
|
|
/s/ Bruno Cloquet
|
|
duly authorised
|
|
)
|
|
Global Head of Exporters and ECAs Origination
|
|
for and on behalf of
|
|
)
|
|
/s/ Véronique De Schepper
|
|
BNP PARIBAS FORTIS S.A./N.V
|
|
)
|
|
Head of Middle Office Financing Solutions Brussels
|
|
SIGNED by
|
|
)
|
|
/s/ Natasha Seel
|
|
duly authorised
|
|
)
|
|
Attorney-in-fact
|
|
for and on behalf of
|
|
)
|
|
|
|
KFW IPEX-BANK GMBH
|
|
)
|
|
|
|
SIGNED by
|
|
)
|
|
/s/ Claudia D’Amico
|
|
duly authorised
|
|
)
|
|
Director, Export and Asset Finance, HSBC Bank plc
|
|
for and on behalf of
|
|
)
|
|
|
|
HSBC BANK PLC
|
|
)
|
|
|
|
SIGNED by
|
|
)
|
|
/s/ Lisbi Valdez
|
|
duly authorised
|
|
)
|
|
Head of Loans Portf. Management
|
|
for and on behalf of
|
|
)
|
|
|
|
CASSA DEPOSITI E PRESTITI S.P.A.
|
|
)
|
|
|
AGENT
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
|
)
|
|
|
|
INVESTMENT BANK
|
|
)
|
|
|
SACE AGENT
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
|
)
|
|
|
|
INVESTMENT BANK
|
|
)
|
|
|
SECURITY TRUSTEE
|
SIGNED by
|
|
)
|
|
/s/ Alexia Russell
|
|
duly authorised
|
|
)
|
|
Attorney in fact
|
|
for and on behalf of
|
|
)
|
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
|
)
|
|
|
|
INVESTMENT BANK
|
|
)
|
|
|
Exhibit 10.6
Execution Version
[*]: THE IDENTIFIED INFORMATION HAS
BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED
Dated
4 June 2020
AMENDMENT TO TERM LOAN FACILITY
LEONARDO
two, LTD.
as Borrower
and
NCL CORPORATION LTD.
as Guarantor
and
The Banks
and Financial Institutions
LISTED IN SCHEDULE 1
as Lenders
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
BNP PARIBAS FORTIS S.A./N.V.
HSBC BANK PLC
CASSA DEPOSITI E PRESTITI S.P.A.
as Joint Mandated Lead Arrangers
and
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
as Agent
and SACE Agent
and
Crédit
Agricole Corporate and Investment Bank
as Security Trustee
SUPPLEMENTAL
AGREEMENT
relating to a facility agreement originally
dated 12 April 2017 (as amended and restated by an amendment and restatement agreement dated 21
November 2017) in respect of the part financing of the 3,300 passenger cruise ship
newbuilding presently designated as Hull No. [*] at Fincantieri S.p.A.
Index
|
Clause
|
Page
|
|
|
|
|
|
1
|
Definitions and Interpretation
|
1
|
|
2
|
Conditions Precedent and Conditions Subsequent
|
2
|
|
3
|
Representations
|
3
|
|
4
|
Acknowledgment and Acceptance of the Principles
|
3
|
|
5
|
Amendments to Facility Agreement and other Finance Documents
|
3
|
|
6
|
New Covenants
|
16
|
|
7
|
Further Assurance
|
18
|
|
8
|
Costs and Expenses
|
18
|
|
9
|
Notices
|
19
|
|
10
|
Counterparts
|
19
|
|
11
|
Signing Electronically
|
19
|
|
12
|
Governing Law
|
19
|
|
13
|
Enforcement
|
19
|
Schedules
|
Schedule 1 Lenders and Commitments
|
21
|
|
Schedule 2 Conditions Precedent
|
23
|
|
Schedule 3 Information Package
|
24
|
|
Schedule 4 Form of Effective Date Certificate
|
25
|
Execution
|
Execution Pages – Leonardo Two – Supplemental Agreement
|
26
|
THIS
AGREEMENT is made on 4 June 2020
Parties
|
|
(1)
|
LEONARDO TWO, LTD., an exempted company incorporated under the laws of Bermuda whose registered
office is at Park Place, 55 Par-la-Ville Road, Hamilton HM11, Bermuda as borrower (the "Borrower")
|
|
|
(2)
|
NCL CORPORATION LTD., an exempted company incorporated under the laws of Bermuda with its
registered office at Cumberland House, 9th Floor, 1 Victoria Street, Hamilton HM11, Bermuda (the "Guarantor")
|
|
|
(3)
|
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Lenders and Commitments) as lenders
(the "Lenders")
|
|
|
(4)
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France, BNP PARIBAS FORTIS S.A./N.V.
of 3, Montagne du Parc, 1 KA1E, 1000 Brussels, Belgium, HSBC BANK PLC of Level 2, 8 Canada
Square, London, E14 5HQ, United Kingdom and CASSA DEPOSITI E PRESTITI S.P.A. of Via Goito, 4 – 00185, Roma,
Italy as joint mandated lead arrangers (the "Mandated Lead Arrangers")
|
|
|
(5)
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as agent and SACE agent (the "Agent"
and the "SACE Agent")
|
|
|
(6)
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme
having its registered office located at 12, Place des Etats-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number
Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as security trustee (the "Security
Trustee")
|
Background
|
|
(A)
|
By the Facility Agreement, the Lenders agreed to make available to the Borrower a facility of (originally)
the Dollar Equivalent of up to €640,000,000 and the amount of the SACE Premium (but not exceeding $868,108,108.11) for the
purpose of assisting the Borrower in financing (a) the payment or reimbursement under the Shipbuilding Contract of all or part
of 80% of the Final Contract Price up to the Eligible Amount and (b) reimbursement to the Borrower of 100% of the First Instalment
of the SACE Premium paid by it to SACE and payment to SACE of 100% of the Second Instalment of the SACE Premium (as defined therein).
|
|
|
(B)
|
Due to the unprecedented and extraordinary impacts of the Covid-19 pandemic on the cruise sector
and cruise operators, SACE S.p.A. has informed the cruise operators of its availability to evaluate certain measures (the "Temporary
Measures") applicable in relation to certain qualifying loan agreements in order to assist companies which
are financially sound but dealing with the impact of the temporary but unprecedented Covid-19 pandemic; the possibility to access
to such measures is subject, amongst other things, to certain principles dated 15 April 2020 for
cruise lines offered by SACE (as further defined below, the "Principles").
|
|
|
(C)
|
Pursuant to the consent request letter dated 18 April 2020, the
Borrower and the Guarantor notified the Agent and the SACE Agent of the wish to benefit from the Temporary Measures in relation
to certain loan agreements listed therein, including the Facility Agreement, and requested, amongst other things, the temporary
suspension of certain covenants under the Guarantee and the addition of certain covenants under the Facility Agreement for a period
of one year from 1 April 2020 to 31 March 2021 (the "Borrower Request").
|
|
|
(D)
|
On 25 May 2020, the Agent (for and on behalf of the Lenders)
and SACE provided their consent to part of the Borrower Request in accordance with and subject to certain conditions as set out
in this supplemental agreement (the "Agreement").
|
|
|
(E)
|
The Parties have agreed to enter into this Agreement for the purposes of, inter alia, documenting
the required amendments identified in the Principles.
|
Operative
Provisions
|
|
1
|
Definitions and Interpretation
|
In this Agreement:
"2020
Deferral Fee Letters" means any letter between the Agent
and any Obligor which sets out the fees payable in connection with the arrangements contemplated by this Agreement.
"2020 Finance Documents"
means this Agreement and each 2020 Deferral Fee Letter.
"Amended
Facility Agreement" means the Facility Agreement as amended and supplemented by this Agreement.
"Deferral
Period" means the period from 1 April 2020 to 31 March 2021.
"Effective
Date" means the date on which the Agent notifies the Borrower, the other Creditor Parties and SACE as to the satisfaction
of the conditions precedent as provided in Clause 2.1(a).
"Facility
Agreement" means the facility agreement dated 12 April 2017 (as amended and restated
pursuant to an amendment and restatement agreement dated 21 November 2017) and made between, amongst others, (i) the Borrower,
(ii) the Lenders, (iii) the Mandated Lead Arrangers, (iv) the Agent and the SACE Agent and (v) the Security Trustee.
"Information
Package" means the information package in connection with the "Debt Holiday" application in the form
set out in Schedule 3 (Information Package) to this Agreement, submitted, or to be submitted (as the case may be), by the
Borrower (or the Guarantor on its behalf) in order to obtain the benefit of the measures provided for in the Principles for the
purpose of the Facility Agreement (as amended) and certain of the Borrower’s and the Guarantor’s obligations under
the Facility Agreement.
"Obligors"
means the Borrower and the Guarantor.
"Party"
means a party to this Agreement.
"Principles"
means the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April
2020, which sets out certain key principles and parameters relating to the qualifying Loan Agreements (as defined therein) and
being applicable to SACE-covered loan agreements such as the Facility Agreement.
"SACE"
means SACE S.p.A., an Italian joint stock company (società per azioni) with a sole shareholder, whose registered
office is located at Piazza Poli 37/42, 00187 Rome, Italy and registered with the Companies Registry of Rome under number 05804521002.
Defined expressions in the
Facility Agreement and, with effect from the Effective Date, the Amended Facility Agreement, shall have the same meanings when
used in this Agreement unless the context otherwise requires or unless otherwise defined in this Agreement.
|
|
1.3
|
Application of construction and interpretation provisions of Facility Agreement
|
Clause 1.2 (construction
of certain terms) of the Facility Agreement applies to this Agreement as if it were expressly incorporated in it with any necessary
modifications.
|
|
1.4
|
Designation as a Finance Document
|
The Borrower and the Agent
designate this Agreement as a Finance Document.
|
|
(a)
|
Unless provided to the contrary in a Finance Document, a person who is not a Party has no right
under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the
benefit of any term of this Agreement other than SACE, who may enforce or to enjoy the benefit of and rely on the provisions of
this Agreement and the Amended Facility Agreement subject to the provisions of the Third Parties Act.
|
|
|
(b)
|
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party
(other than SACE) is not required to rescind or vary this Agreement at any time.
|
|
|
(c)
|
For the avoidance of doubt and in accordance with clause 36.4 (Third party rights) of the
Facility Agreement, nothing in this Clause 1.5 (Third party rights) shall limit or prejudice the exercise by SACE of its
rights under this Agreement or the Finance Documents in the event that such rights are subrogated or assigned to it pursuant to
the terms of the SACE Insurance Policy.
|
|
|
2
|
Conditions Precedent and Conditions Subsequent
|
|
|
2.1
|
The Effective Date cannot occur unless:
|
|
|
(a)
|
the Agent has received (or on the instructions of all the Lenders, waived receipt of) all of the
documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent;
|
|
|
(b)
|
save as disclosed in writing to the Agent and SACE prior to the
date of this Agreement, the representations and warranties contained in Clause 3
(Representations) are true and correct on, and as of, each such time as if each was made with respect to the facts and circumstances
existing at such time;
|
|
|
(c)
|
save as disclosed in writing to the Agent and SACE prior to the
date of this Agreement, no Event of Default, event or circumstance specified in clause 18 (Events
of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the
Finance Documents or any combination of any of the foregoing) be an Event of Default, event resulting in mandatory prepayment of
the Loan pursuant to Clause 16.3 (Mandatory prepayment – sale and total loss) and Clause 16.4 (Mandatory prepayment
– SACE insurance policy) of the Facility Agreement shall have occurred and be continuing or would result from the amendment
of the Facility Agreement pursuant to this Agreement; and
|
|
|
(d)
|
the Agent is satisfied that the Effective Date can occur and have not provided any instructions
to the contrary informing the Parties that the Effective Date cannot occur.
|
|
|
2.2
|
Upon fulfilment or waiver of the conditions set out in Clause 2.1 above, the Agent shall provide
the Borrower and the Lenders with a copy of the executed certificate in the form set out in Schedule 4 (Form of Effective Date
Certificate) confirming that the Effective Date has occurred and such certificate shall be binding on all Parties.
|
|
|
2.3
|
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary
before the Agent provides the certificate described in Clause 2.2 above, the Creditor Parties authorise (but do not require) the
Agent to execute and provide such certificate. The Agent shall not be liable for any damages, costs or losses whatsoever as a result
of giving any such certificate.
|
|
|
3.1
|
Facility Agreement representations
|
On the date of this Agreement
and on the Effective Date, each Obligor that is a party to the Facility Agreement makes each of the representations and warranties
as set out in clause 11 (representations and warranties) of the Facility Agreement, as amended and supplemented by this
Agreement and updated with appropriate modifications to refer to the 2020 Finance Documents.
|
|
3.2
|
Finance Document representations
|
Each Obligor makes the representations
and warranties set out in the Finance Documents (other than the Facility Agreement) to which it is a party, as amended and supplemented
by this Agreement and updated with appropriate modifications to refer to this Agreement, by reference to the circumstances then
existing on the date of this Agreement.
|
|
4
|
Acknowledgment and Acceptance of the Principles
|
Each
Obligor confirms its acknowledgment to the Principles and full acceptance of all terms, requirements and conditions thereunder.
|
|
5
|
Amendments to Facility Agreement and other Finance Documents
|
|
|
5.1
|
Specific amendments to the Facility Agreement
|
With effect on and from the
Effective Date the Facility Agreement shall be, and shall be deemed by this Agreement to be, amended as follows:
|
|
(a)
|
In clause 1.1 (Definitions) of the Facility Agreement, the following definitions shall be
added in alphabetical order:
|
|
|
(i)
|
"2020 Amendment Agreement" means the amendment to this Agreement dated 4 June 2020 between, amongst others, the Borrower, the Agent and the SACE Agent.
|
|
|
(ii)
|
"2020 Deferral Effective Date" has the meaning given to the term Effective Date
in the 2020 Amendment Agreement.
|
|
|
(iii)
|
"2020 Deferral Fee Letters"
means any letter between the Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated
by the 2020 Amendment Agreement.
|
|
|
(iv)
|
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework
for the recovery and resolution of credit institutions and investment firms.
|
|
|
(v)
|
"Deferral Period" means the period from 1 April 2020 to 31 March 2021.
|
|
|
(vi)
|
"Funding Rate"
means any individual rate notified by a Lender to the Agent pursuant to sub-paragraph (i) of paragraph (e) of Clause 6.9 (Cost
of funds).
|
|
|
(vii)
|
"Interpolated Screen Rate"
means, in relation to the Loan or any part of the Loan, the rate which results from interpolating on a linear basis between:
|
|
|
(i)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which
is less than the Interest Period of the Loan or that part of the Loan; and
|
|
|
(ii)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which
exceeds the Interest Period of the Loan or that part of the Loan,
|
each as
of the Specified Time for Dollars.
|
|
(viii)
|
"Principles" means
the document titled "Cruise Debt Holiday Principles" offered by SACE dated 15 April 2020, which sets out certain key
principles and parameters relating to the qualifying Loan Agreements (as defined therein) and being applicable to SACE-covered
loan agreements such as this Agreement.
|
|
|
(ix)
|
"Reference Bank Rate"
means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the
Reference Banks:
|
|
|
(A)
|
the Reference Bank is a contributor to the Screen Rate; and
|
|
|
(B)
|
it consists of a single figure,
|
as the rate
(applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to
submit to the relevant administrator; or
|
|
(ii)
|
in any other case, as the rate at which the relevant Reference Bank could fund itself in Dollars
for the relevant period with reference to the unsecured wholesale funding market.
|
|
|
(x)
|
"Reference Bank Quotation"
means any quotation supplied to the Agent by a Reference Bank.
|
|
|
(xi)
|
"Reference Banks"
means such entities as may be appointed by the Agent in consultation with the Borrower.
|
|
|
(xii)
|
"Relevant Nominating Body" means any applicable central bank, regulator or other
supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request
of, any of them or the Financial Stability Board.
|
|
|
(xiii)
|
"Replacement Benchmark" means a benchmark rate which is:
|
|
|
(i)
|
formally designated, nominated or recommended as the replacement for a Screen Rate by:
|
|
|
(A)
|
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark
rate measures is the same as that measured by that Screen Rate); or
|
|
|
(B)
|
any Relevant Nominating Body,
|
and if replacements
have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Benchmark"
will be the replacement under paragraph (B) above;
|
|
(ii)
|
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international
or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
|
|
|
(iii)
|
in the opinion of the Majority Lenders and the Borrower, an appropriate successor to a Screen Rate.
|
|
|
(xiv)
|
"Screen Rate"
means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over
the administration of that rate) for Dollars for the relevant period displayed (before any correction, recalculation or republication
by the administrator) on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that
rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson
Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant
rate after consultation with the Borrower.
|
|
|
(xv)
|
"Screen Rate Contingency Period"
means fifteen (15) Business Days.
|
|
|
(xvi)
|
"Screen Rate Replacement Event"
means, in relation to a Screen Rate:
|
|
|
(i)
|
the methodology, formula or other means of determining that Screen Rate has, in the opinion of
the Majority Lenders and the Borrower materially changed;
|
|
|
(1)
|
the administrator of that Screen Rate or its supervisor publicly announces that such administrator
is insolvent; or
|
|
|
(2)
|
information is published in any order, decree, notice, petition or filing, however described, or
filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of that Screen Rate is insolvent,
|
provided
that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
|
(B)
|
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide
that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that
Screen Rate;
|
|
|
(C)
|
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate
has been or will be permanently or indefinitely discontinued; or
|
|
|
(D)
|
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no
longer be used; or
|
|
|
(iii)
|
the administrator of that Screen Rate determines that that Screen Rate should be calculated in
accordance with its reduced submissions or other contingency or fallback policies or arrangements and either:
|
|
|
(A)
|
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority
Lenders and the Borrower) temporary; or
|
|
|
(B)
|
that Screen Rate is calculated in accordance with any such policy or arrangement for a period no
less than the Screen Rate Contingency Period; or
|
|
|
(iv)
|
in the opinion of the Majority Lenders and the Borrower, that Screen Rate is otherwise no longer
appropriate for the purposes of calculating interest under this Agreement.
|
|
|
(xvii)
|
"Specified Time"
means a day or time determined in accordance with the following:
|
|
|
(i)
|
if LIBOR is fixed, the Quotation Day as of 11:00 am London time; and
|
|
|
(ii)
|
in relation to a Reference Bank Rate calculated by reference to the available quotations in accordance
with Clause 6.7 (Calculation of Reference Bank Rate), noon on the Quotation Day.
|
|
|
(xviii)
|
"UK Bail-In Legislation" means (to the extent that the United Kingdom is not an
EEA Member Country which has implemented, or implements, Article 55 BRRD) Part 1 of the United Kingdom Banking Act 2009 and any
other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms
or other financial institutes or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
|
|
|
(b)
|
In clause 1.1 (Definitions) of the Facility Agreement, the following definitions shall be
amended as follows:
|
|
|
(i)
|
the definition of "Bail-In Legislation" shall be deleted and replaced as follows:
|
“"Bail-In
Legislation" means:
|
|
(a)
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article
55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
|
|
(b)
|
in relation to any state other than such an EEA Member Country or (to the extent that the United
Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires
contractual recognition of any Write-down and Conversion Powers contained in that law or regulation”;
|
|
|
(ii)
|
the definition of "Finance Documents" shall be amended by adding the 2020 Amendment Agreement
and the 2020 Deferral Fee Letters as Finance Documents;
|
|
|
(iii)
|
the definition of "LIBOR" shall be deleted and replaced as follows:
|
“"LIBOR"
means, in relation to the Loan or any part of the Loan:
(A) the
applicable Screen Rate as of the Specified Time for Dollars and for a period equal in length to the Interest Period of the Loan
or that part of the Loan; or
(B) as otherwise
determined pursuant to Clause 6.6 (Unavailability of Screen Rate),
and if, in
either case, that rate is less than zero, LIBOR shall be deemed to be zero”;
|
|
(iv)
|
the definition of "Overnight LIBOR" shall be deleted and replaced as follows:
|
“"Overnight
LIBOR" means, in relation to the Loan or any part of the Loan:
|
|
(A)
|
on any date, the applicable day to day Screen Rate as of the Specified Time for Dollars; or
|
|
|
(B)
|
as otherwise determined pursuant to Clause 6.6 (Unavailability of Screen Rate),
|
and if, in
either case, that rate is less than zero, Overnight LIBOR shall be deemed to be zero”;
|
|
(v)
|
the definition of "Quotation Date" shall be deleted and replaced as follows:
|
"Quotation
Day" means in relation to any period for which an interest rate is to be determined, two Business Days before the first
day of that period unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will be determined
by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days),
and all references
to "Quotation Date" shall be replaced with references to "Quotation Day.
|
|
(vi)
|
the definition of "Relevant Interbank Market" shall be deleted and replaced as follows:
|
"Relevant
Interbank Market" means the London interbank market.
|
|
(vii)
|
the definition of "Write-down and Conversion Powers" shall be deleted and replaced as
follows:
|
“"Write-down
and Conversion Powers" means:
|
|
(i)
|
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time
to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
|
|
|
(ii)
|
in relation to any other applicable Bail-In Legislation:
|
|
|
(A)
|
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those
powers; and
|
|
|
(B)
|
any similar or analogous powers under that Bail-In Legislation; and
|
|
|
(iii)
|
in relation to any UK Bail-In Legislation:
|
|
|
(A)
|
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of
those powers; and
|
|
|
(B)
|
any similar or analogous powers under that UK Bail-In Legislation”; and
|
|
|
(c)
|
Clauses 6.6 (Market disruption) to clause 6.11 (Alternative rate of interest in absence
of agreement) inclusive of the Facility Agreement shall be deleted and replaced by the following provisions:
|
“6.6
Unavailability of Screen Rate
|
|
(a)
|
Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period
of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to
the Interest Period of the Loan or that part of the Loan.
|
|
|
(b)
|
Reference Bank Rate: If no Screen Rate is available for LIBOR for:
|
|
|
(ii)
|
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the
Interpolated Screen Rate,
|
|
|
(iii)
|
the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time and for a period
equal in length to the Interest Period of the Loan or that part of the Loan.
|
|
|
(c)
|
Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for
Dollars or the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause
6.9 (Cost of funds) shall apply to the Loan or that part of the Loan for that Interest Period.
|
6.7 Calculation
of Reference Bank Rate
|
|
(a)
|
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate
but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis
of the quotations of the remaining Reference Banks.
|
|
|
(b)
|
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation,
there shall be no Reference Bank Rate for the relevant Interest Period.
|
6.8 Market
Disruption
If before
close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notification from a Lender
or Lenders (whose participations in the Loan or the relevant part of the Loan in aggregate exceed 50 per cent. of the Loan or the
relevant part of the Loan as appropriate) that the cost to it or each of them of funding its participation in the Loan or that
part of the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 6.9 (Cost of funds)
shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
6.9 Cost
of funds
|
|
(a)
|
If this Clause 6.9 (Cost of funds) applies, the rate of interest on the Loan or the relevant
part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
|
|
(ii)
|
the weighted average of the rates notified to the Agent by each Lender as soon as practicable and
in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate
per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source
it may reasonably select.
|
|
|
(b)
|
If this Clause 6.9 (Cost of funds) applies and the Agent or the Borrower so requires, the
Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute
basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
|
|
(c)
|
Subject to Clause 6.10 (Replacement of Screen Rate), any
substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the
Borrower, be binding on all Parties.
|
|
|
(d)
|
If paragraph (e) below does not apply and any rate notified to the Agent under sub-paragraph (ii)
of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
|
|
(e)
|
If this Clause 6.9 (Cost of funds) applies pursuant to Clause 6.8 (Market disruption)
and:
|
|
|
(i)
|
a Lender's Funding Rate is less than LIBOR; or
|
|
|
(ii)
|
a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph
(a) above,
|
the cost to
that Lender of funding its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed,
for the purposes of paragraph (a) above, to be LIBOR.
|
|
(f)
|
If this Clause 6.9 (Cost of funds) applies but any Lender does not supply a quotation by
the time specified in sub-paragraph (ii) of paragraph (a) above, the rate of interest shall be calculated on the basis of the quotations
of the remaining Lenders.
|
6.10 Replacement
of Screen Rate
If a Screen
Rate Replacement Event has occurred in relation to the Screen Rate for Dollars, any amendment or waiver which relates to:
|
|
(i)
|
providing for the use of a Replacement Benchmark; and
|
|
|
(A)
|
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
|
|
(B)
|
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement
(including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes
of this Agreement);
|
|
|
(C)
|
implementing market conventions applicable to that Replacement Benchmark;
|
|
|
(D)
|
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark;
or
|
|
|
(E)
|
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer
of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment
or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body,
the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
may be made
with the consent of the Agent (acting on the instructions of the Majority Lenders), SACE and SIMEST (if applicable) and the Borrower,
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
(d)
|
Clause 12.2 (Information) shall be amended by:
|
|
|
(i)
|
deleting sub-clause (b); and
|
|
|
(ii)
|
deleting sub-clause (c) and replacing it with the following wording:
|
“(c)
as soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter for the first three
quarters in any fiscal year and within 90 days for the final quarter) a copy of the unaudited consolidated quarterly management
accounts of the Guarantor (it being understood that the delivery by the Guarantor of quarterly or annual reports as filed with
the Securities and Exchange Commission in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements
of this paragraph (c)”.
|
|
(e)
|
Clause 18.4 (Breach of other obligations) shall be amended by adding a new sub-clause (d)
as follows:
|
“(d)
any breach of any financial covenant contained in Clause 11.15 of the Guarantee arising on a testing date during the Deferral Period
shall not, subject to no (i) Event of Default under Clauses 18.7 (Winding-up) to Clause 18.13 (Cessation of business)
(inclusive) having occurred and being continuing or (ii) event entitling the Agent to exercise any rights granted to it pursuant
to Clause 6.5 (Breach of new covenants or the Principles) of the 2020 Amendment Agreement, including, without limitation,
the ability to terminate the waiver of the financial covenants granted pursuant to clause 11.15 of the Guarantee as amended by
the 2020 Amendment Agreement having occurred, constitute an Event of Default.”
|
|
(f)
|
A cross-default occurring solely due to a breach of financial covenants in respect of the Guarantee
and applying to the Group in another SACE-backed loan agreement to which the Principles apply shall not, subject to the terms of
the Amended Facility Agreement, result in an Event of Default and, accordingly, a new clause 18.6(e) shall be added as follows:
|
“(e)
No Event of Default will occur, or be deemed to have occurred, under this Clause 18.6 (Cross default) if such Event of Default
occurs during the Deferral Period (but without prejudice to the rights of the Lenders in respect of any further breach that may
occur following the expiry of the Deferral Period) and is caused solely as a result of a breach of financial covenants in respect
of the Group equivalent to those set out in clause 11.15 of the Guarantee, under, or in relation to, any other SACE-backed facility
agreement to which a Guarantor is a Party or has executed a Guarantee and to which the Principles apply, unless at the time of
such Event of Default, an event resulting in mandatory prepayment of the Loan pursuant to Clause 16.3 (Mandatory prepayment
– sale and total loss) and Clause 16.4 (Mandatory prepayment – SACE insurance policy) has occurred.”
|
|
(g)
|
A new clause 39 (Confidentiality of funding rates and reference bank quotations) shall be
added as follows:
|
39 Confidentiality
of funding rates and reference bank quotations.
39.1 Confidentiality
and disclosure
|
|
(a)
|
The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and
(d) below.
|
|
|
(b)
|
The Agent may disclose:
|
|
|
(i)
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower
pursuant to Clause 6.5 (Notification of Interest Periods and Floating Interest Rate);
|
|
|
(ii)
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration
services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide
those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially
in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other
form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
|
|
|
(c)
|
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose
any Funding Rate, to:
|
|
|
(i)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers,
auditors, partners and representatives, if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant
to this sub-paragraph (i) is informed in writing of its confidential nature and that it may be price sensitive information except
that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
|
|
(ii)
|
any person to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is
to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable
to do so in the circumstances;
|
|
|
(iii)
|
any person to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding
Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive
information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as
the case may be, it is not practicable to do so in the circumstances; and
|
|
|
(iv)
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
|
|
(d)
|
The Agent’s obligations in this Clause 39 (Confidentiality of Funding Rates and Reference
Bank Quotations) relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under
Clause 6.5 (Notification of Interest Periods and Floating Interest Rate) provided that (other than pursuant to sub-paragraph
(i) of paragraph (b) above) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such
notification.
|
39.2 Related
obligations
|
|
(a)
|
The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not
to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
|
|
(b)
|
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the
relevant Lender or Reference Bank, as the case may be:
|
|
|
(i)
|
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of (c) of Clause 39.1
(Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph
during the ordinary course of its supervisory or regulatory function; and
|
|
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this Clause 39 (Confidentiality
of Funding Rates and Reference Bank Quotations).
|
39.3 No
Event of Default
No Event
of Default will occur under Clause 18.4 (Breach of other obligations) by reason only of an Obligor’s failure to comply
with this Clause 39 (Confidentiality of Funding Rates and Reference Bank Quotations).
and the remaining
clauses will be renumbered and all relevant cross references will be updated accordingly.
|
|
5.2
|
Specific Amendments to Guarantee
|
With effect on and from the
Effective Date, Clause 11.3 (Provision of financial statements) of the Guarantee shall be, and shall be deemed by this Agreement
to be amended as follows:
|
|
(a)
|
deleting sub-clause (b) and replacing it with the following wording:
|
“(b) as
soon as practicable (and in any event within forty-five (45) days of the end of the contemplated quarter in respect of the first
three quarters of each fiscal year and 90 days in respect of the final quarter) a copy of the unaudited consolidated quarterly
management accounts of the Guarantor certified as to their correctness by the chief financial officer of the Guarantor (it being
understood that the delivery by the Guarantor of quarterly or annual reports as filed with the Securities and Exchange Commission
in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements of this paragraph (b))”;
|
|
(b)
|
deleting sub-clauses (e), (f) and (g) and replacing them with the following new clause (e):
|
“(e)
As soon as practicable (and in any event not later than January 31 of each fiscal year):
(i) updated
financial projections of the Group for at least the next five years (including an income statement, balance sheet statement and
cash flow statement and quarterly break downs for the first of those five years); and
(ii) an outline of the assumptions
supporting such budget and financial projections including but without limitation any scheduled drydockings.”,
and,
for the avoidance of doubt, subject to the provisions of Clause 5.5 (Borrower and Creditor Parties’ Confirmations and
Waivers) and Clause 6.5 (Breach of new covenants or the Principles), the financial covenants will continue to
be tested and the reporting obligations shall continue to apply in accordance with clause 11.3 (Provision of financial statements)
of the Guarantee (as amended and supplemented by this Agreement) in respect of the Deferral Period.
|
|
5.3
|
Guarantor confirmation
|
On the Effective Date the Guarantor
confirms that:
|
|
(a)
|
its Guarantee extends to the obligations of the Borrower under the Finance Documents as amended
and supplemented by this Agreement;
|
|
|
(b)
|
the obligations of the relevant Obligors under the Finance Documents as amended and supplemented
by this Agreement are included in the Secured Liabilities (as defined in the Facility Agreement); and
|
|
|
(c)
|
the Guarantee continues to have full force and effect in accordance with its terms as so extended.
|
|
|
5.4
|
Security confirmation
|
On the Effective Date, each
Obligor confirms that:
|
|
(a)
|
any Security Interest created by it under the Finance Documents extends to the obligations of the
relevant Obligors under the Finance Documents as amended and supplemented by this Agreement;
|
|
|
(b)
|
the obligations of the relevant Obligors under the Finance Documents as amended and supplemented
by this Agreement are included in the Secured Liabilities (as defined in the Finance Documents to which it is a party);
|
|
|
(c)
|
the Security Interests created under the Finance Documents continue in full force and effect on
the terms of the respective Finance Documents; and
|
|
|
(d)
|
to the extent that this confirmation creates a new Security Interest, such Security Interest shall
be on the terms of the Finance Documents in respect of which this confirmation is given.
|
|
|
5.5
|
Borrower and Creditor Parties’ Confirmations and Waivers
|
Notwithstanding
the amendments to the testing of the financial covenants contemplated by Clause 5.2, the Borrower and the Guarantor confirm that
the reporting obligations under clause 11.3 (Provision of financial statements) of
the Guarantee (as amended and supplemented by this Agreement) in respect of such financial covenants shall continue to apply. The
Agent confirms that any breach of such financial covenants arising on a testing date during the Deferral Period by reference to
the financial position of the Group (on a consolidated basis), shall not (without prejudice to the rights of the Lenders in respect
of any further breach of such financial covenants that may occur following the expiry of the Deferral Period, and subject further
to no Event of Default under Clauses 18.7 (Winding-up) to Clause 18.13 (Cessation of
business) (inclusive) of the Amended Facility Agreement having occurred and being continuing) result in an Event of Default.
|
|
5.6
|
Finance Documents to remain in full force and effect
|
The Finance Documents shall
remain in full force and effect and, from the Effective Date:
|
|
(a)
|
shall be, and shall be deemed by this Agreement to be amended (where
relevant) to include a cross reference to clause 23 (Bail-in) of the Facility Agreement as amended by this Agreement;
|
|
|
(b)
|
in the case of the Facility Agreement, as amended and supplemented pursuant to Clause 5.1 (Specific
amendments to the Facility Agreement);
|
|
|
(c)
|
in the case of the Guarantee, as amended and supplemented pursuant to Clause 5.2 (Specific Amendments
to Guarantee);
|
|
|
(d)
|
the Facility Agreement and the applicable provisions of this Agreement will be read and construed
as one document;
|
|
|
(e)
|
the Guarantee and the applicable provisions of this Agreement will be read and construed as one
document; and
|
except to
the extent expressly waived by the amendments effected by this Agreement, no waiver is given by this Agreement and the Lenders
expressly reserve all their rights and remedies in respect of any breach of or other default under the Finance Documents.
|
|
6.1
|
Payments under the Shipbuilding Contracts
|
Until 31
March 2021:
|
|
(a)
|
the Guarantor shall and the Guarantor shall procure that any member of the Group that has entered
into a shipbuilding contract with a shipbuilder or enters into any such shipbuilding contract, in each case which is financed with
the support of SACE (the “Covered Shipbuilding Contracts”) shall continue to
perform all of their respective obligations as set out in any Covered Shipbuilding Contract (including without limitation the payment
of any instalments due under any Covered Shipbuilding Contract (as the same may have been amended prior to the 2020 Deferral Effective
Date), and subject to any amendment agreed pursuant to Clause 6.1(b) below). The Guarantor shall and the Guarantor shall procure
that any member of the Group shall promptly notify the Agent and SACE of any failure by it to comply with any due and owing obligations
under a Covered Shipbuilding Contract; and
|
|
|
(b)
|
the Guarantor shall and the Guarantor shall procure that any member of the Group further undertakes
to consult with the Agent and SACE in respect of any proposed amendment to a Covered Shipbuilding
Contract insofar as any such proposed amendment relates to a payment instalment or (save as expressly permitted by the relevant
Amended Facility Agreement) a delivery date or any other substantial amendment which may affect the related financing and to obtain
the Agent and SACE’s approval prior to executing any such amendment.
|
No Obligor
shall:
|
|
(a)
|
declare, make or pay any dividend or other distribution (or interest on any unpaid dividend or
other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);
|
|
|
(b)
|
repay or distribute any dividend or share premium reserve;
|
|
|
(c)
|
make any repayment of any kind under any shareholder loan; or
|
|
|
(d)
|
redeem, repurchase (whether by way of share buy-back program or otherwise), defease, retire or
repay any of its share capital or resolve to do so,
|
during the
period up to and including 31 March 2021, except that (i) any Obligor may pay
dividends and other distributions, directly or indirectly, to the Guarantor for the purpose of providing liquidity to the Guarantor
to enable the Guarantor to satisfy payment obligations for which the Guarantor is an obligor and (ii) any Obligor may pay
dividends in respect of the tax liability to each relevant jurisdiction in respect of consolidated,
combined, unitary or affiliated tax returns for each relevant jurisdiction of the Group or holder of the Guarantor’s capital
stock with respect to income taxable as a result of any member of the Group being taxed as a pass-through entity for U.S. Federal,
state and local income tax purposes or attributable to any member of the Group, provided that the actions in paragraph (ii) above
shall only be permitted if there is no Event of Default which is continuing under the Amended Facility Agreement and no
Event of Default would arise from the payment of such dividend.
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6.3
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New capital raises or financing
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|
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(a)
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Save as provided below:
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|
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(i)
|
no new debt or equity issuance shall be raised and no new Financial Indebtedness shall be incurred
by the Group] (including, for the avoidance of doubt, inter-company loans);
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(ii)
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no non-arm’s length disposals of any asset relating to the Group fleet shall be made; and
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(iii)
|
no additional Security Interests securing existing Financial Indebtedness will be created or permitted
to subsist,
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during the
period up to and including 31 March 2021.
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(b)
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The restrictions in Clause 6.3(a) shall not apply in relation to:
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(i)
|
any refinancing of any bond issuance of, or loan entered into by, the Group and maturing during
such period, and which, in each case, has been (or will be) listed in the Information Package submitted to the Agent prior to the
2020 Deferral Effective Date;
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(ii)
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any debt or equity issuance being raised prior to 31 December 2021 to provide the Group with crisis
and/or recovery related funding in respect of the impact of the Covid-19 pandemic;
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(iii)
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any debt or equity issuance being raised on or after 31 December 2021 to support the Group with
the impact of the Covid-19 pandemic, made with the prior written consent of SACE;
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(iv)
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any debt or equity issuance being raised to finance any instalment of a cruise vessel already contracted
for or contracted for during such period or any refurbishment, maintenance, upgrade or lengthening of a cruise ship during such
period;
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|
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(v)
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any debt or equity issuance being raised to finance capital expenditure for projects which are
already contracted for but in respect of which committed financing has not yet been obtained, and which, in each case has been
(or will be) listed in the Information Package submitted to the Agent prior to the 2020 Deferral Effective Date;
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(vi)
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any extension of revolving credit facilities;
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(vii)
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any new debt or equity issuance otherwise agreed by SACE; or
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(viii)
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any inter-company loan which:
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(A)
|
is existing as of the date of the 2020 Amendment Agreement;
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(B)
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is made among any Group members provided that:
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(1)
|
any inter-company loan is made solely for the purpose of regulatory or tax purposes carried out
in the ordinary course of business and on an arm’s length basis; and
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|
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(2)
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the aggregate principal amount of any inter-company loans outstanding pursuant to this Clause 6.3(b)(viii)(B)
does not exceed fifty million Dollars ($50,000,000) at any time; or
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|
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(C)
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has been approved with the prior written consent of SACE.
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6.4
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Additional financial reporting
|
In
addition to the information to be provided in accordance with clause 12.2 (Information) of the Amended Facility Agreement
and clause 11.3 (Provision of financial statements) (as amended and supplemented by this Agreement) of the Guarantee, the
Guarantor undertakes to provide to the Agent a written report (in form and substance satisfactory to SACE) from the Effective Date
until the end of the Deferral Period, on a monthly basis within ten (10) days after the end of each month, covering the cashflow
projections for each month for the period from the date of the relevant report until 31 March 2022, with a first monthly
period commencing on 1 April 2020.
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|
6.5
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Breach of new covenants or the Principles
|
Failure
to comply with the provisions of Clauses 6.1 to 6.4 inclusive, or to otherwise duly perform and observe the other requirements
and obligations set out in the Principles shall, in each case, not constitute an Event of Default under the Facility Agreement
but shall (in the case of any failure that is capable of remedy (in the opinion of the Agent, at its sole discretion), including
any failure to comply with Clause 6.1 or Clause 6.4, only if such failure is not remedied within the Relevant Period pursuant to
clause 18.4 of the Amended Facility Agreement from the date of such failure to comply) reinstate from the date of such breach the
requirement to comply with the financial covenants set out in clause 11.15 (Financial covenants) of the Guarantee which
was otherwise suspended by operation of this Agreement.
Clause 12.20 (further assurance)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
|
|
(a)
|
Clause 10.11 (transaction costs) of the Facility Agreement, as amended and supplemented
by this Agreement, applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
|
|
|
(b)
|
The Borrower shall pay to each of (i) the Agent (for the account of each Lender) and (ii) SACE
a handling fee in the amount and at times agreed in the 2020 Deferral Fee Letters.
|
Clause 32 (notices)
of the Facility Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated
in it with any necessary modifications.
This Agreement 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
Agreement.
|
|
11
|
Signing Electronically
|
The Parties
acknowledge and agree that they may execute this Agreement and any variation or amendment to the same, by electronic instrument.
The Parties agree that the electronic signatures appearing on the documents shall have the same effect as handwritten signatures
and the use of an electronic signature on this Agreement shall have the same validity and legal effect as the use of a signature
affixed by hand and is made with the intention of authenticating this Agreement, and evidencing the Parties’ intention to
be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise
each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests
including contract management.
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
|
|
(a)
|
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 or any non-contractual
obligation arising out of or in connection with this Agreement) (a "Dispute").
|
|
|
(b)
|
The Obligors accept that the courts of England are the most appropriate and convenient courts to
settle Disputes and accordingly no Obligor will argue to the contrary.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other
than an Obligor incorporated in England and Wales):
|
|
|
(i)
|
irrevocably appoints Hannaford Turner LLP, currently of 9 Cloak Lane, London EC4R 2RU, UK as its
agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document;
and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate
the proceedings concerned.
|
|
|
(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent
for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within 10 days of such
event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for
this purpose.
|
This Agreement has been entered into
on the date stated at the beginning of this Agreement.
Execution
Pages – Leonardo Two – Supplemental Agreement
|
BORROWER
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
LEONARDO TWO, LTD.
|
)
|
|
|
|
|
|
|
GUARANTOR
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Daniel S. Farkas
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
NCL CORPORATION LTD.
|
)
|
|
|
|
|
|
|
LENDERS
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE
|
)
|
|
|
AND INVESTMENT BANK
|
)
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Bruno Cloquet
|
|
duly authorised
|
)
|
Head of Exporters and ECAs Origination
|
|
for and on behalf of
|
)
|
/s/ Véronique De Schepper
|
|
BNP PARIBAS FORTIS S.A./N.V
|
)
|
Head of Middle Office Financing Solutions Brussels
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Alessandro Mazzi
|
|
duly authorised
|
)
|
Head of Export & Asset Finance, Italy
|
|
for and on behalf of
|
)
|
& Global Head of ECA Business Development
|
|
HSBC FRANCE, MILAN BRANCH
|
)
|
HSBC France, Milan Branch
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
DEKABANK DEUTSCHE GIROZENTRALE
|
)
|
|
|
SIGNED by
|
)
|
/s/ Lisbi Valdez
|
|
duly authorised
|
)
|
Head of Loans Portf. Management
|
|
for and on behalf of
|
)
|
|
|
CASSA DEPOSITI E PRESTITI S.P.A.
|
)
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Luca Geronimi
|
|
duly authorised
|
)
|
|
|
for and on behalf of
|
)
|
|
|
BANCO BPM S.P.A.
|
)
|
|
|
|
|
|
|
MANDATED LEAD ARRANGERS
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE
|
)
|
|
|
AND INVESTMENT BANK
|
)
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Bruno Cloquet
|
|
duly authorised
|
)
|
Global Head of Exporters and ECAs Origination
|
|
for and on behalf of
|
)
|
/s/ Véronique De Schepper
|
|
BNP PARIBAS FORTIS S.A./N.V.
|
)
|
Head of Middle Office Financing Solutions Brussels
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Claudia D’Amico
|
|
duly authorised
|
)
|
Director, Export and Asset Finance, HSBC plc
|
|
for and on behalf of
|
)
|
|
|
HSBC BANK PLC
|
)
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Lisbi Valdez
|
|
duly authorised
|
)
|
Head of Loans Portf. Management
|
|
for and on behalf of
|
)
|
|
|
CASSA DEPOSITI E PRESTITI S.P.A.
|
)
|
|
|
AGENT
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
)
|
|
|
INVESTMENT BANK
|
)
|
|
|
|
|
|
|
SACE AGENT
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
)
|
|
|
INVESTMENT BANK
|
)
|
|
|
|
|
|
|
SECURITY TRUSTEE
|
|
|
|
|
|
|
|
SIGNED by
|
)
|
/s/ Alexia Russell
|
|
duly authorised
|
)
|
Attorney in fact
|
|
for and on behalf of
|
)
|
|
|
CRÉDIT AGRICOLE CORPORATE AND
|
)
|
|
|
INVESTMENT BANK
|
)
|
|